PRA requests, personal devices, and your role as agency communicator
by Scott Summerfield, Principal, SAE Communications and David Newdorf, Attorney, Newdorf Legal
California Public Records Act (PRA) requests – once the almost-exclusive domain of the media – have exploded in recent years, with many agencies adding staff to cope with demands of these often-complicated queries. Requests come from the public far more frequently now, and while they’re certainly a legitimate window into how government does business, they can also be a point of angst and frustration for the requestor, the PIO, and legal counsel if not handled efficiently.
Adding to the challenge is a recent California State Supreme Court decision confirming that public business conducted on personal devices and personal accounts is subject to the PRA. This can be interpreted that any email, text, voicemail, social media post, or other communication that references public business, such as a brewing crisis of confidence, is now subject to PRA requests. While a reference to public business by itself doesn’t convert a private communication to a public record that must be turned over under the PRA, it’s enough to trigger a local agency’s duty to review current and former employees’ and officials’ private accounts for potential public records. And that can be a big problem if your staff and electeds aren’t diligent about how they communicate.
Let’s think about what this means for your staff and your reputation. You might text your spouse about a scandal that’s brewing in your agency, using your personal phone on a personal mobile plan. Maybe you say something like “OMG, you wouldn’t believe what I just heard… looks like Jim in Public Works is steering big contracts to a friend and getting kickbacks. Remember when we stayed at his vacation condo and wondered how he could afford it? Yikes!”
If the scandal proves true, you’re now right in the middle of it. While you may not be guilty of a crime, you’re indirectly linked to one and your reputation will likely take a hit. It’s important to recognize that the legal aspects of an issue are the floor, not the ceiling. Your ethics, morality, and judgment will all be questioned, and your media relationships may be damaged.
Almost all of us have included some of these words or phrases in a text about our agency: For crying out loud, Holy sh*t, Holy cow, Holy crap, Oh my God, Oh my goodness, OMG, OMFG, Oops, Shoot, Yikes, !!!, What a disaster, Hit the fan, Perception issue, Screw up, Screwed up, Uncomfortable, Big trouble. No big deal, right? They were personal communiques. Well these were actual keywords used in a recent PRA request that yielded several thousand hits. You can imagine the embarrassment (or worse) created by the related emails and texts.
Your legal counsel should make the final call on whether a file in a private account is a public record subject to production. A text complaining that “my coworker is an idiot” is likely not a public record, but could be in some circumstances. The factors that counsel and courts consider include:
- Context/Purpose – Why was the message written? Was it written to conduct the local agency’s business or further the local agency’s interest?
- Audience – To whom was the message sent? Was it sent to an agency employee, official, resident, consultant, agency stakeholder, etc.? Or was the email sent to a friend or family member?
- Scope – Was the message written in the individual’s capacity as an agency official or employee representing the agency? Or was the email written as a private individual?
Each text or email must be reviewed on a case-by-case basis to determine whether it is a public or personal record.
Two key strategies can help keep you and your agency out of trouble. The first – don’t write it if you don’t want it made public – seems simple enough, but experience proves that it is often ignored. The second – if you’re conducting public business, do it in a medium that is covered by your agency’s record retention policy – may require you to change how you communicate but provides a much higher level of confidence that a full and complete record will exist around every agency issue.
Both strategies require staff training, and changes to policies, procedures, and regulations, including an update to your IT and record retention policies to include texts, apps, social media, and other platforms. But consider the risks if you continue to do business the old way. Nothing remains secret anymore – nor should it – and skillfully-crafted PRA requests can shine an unflattering light on your agency and your staff that will erode confidence and trust at a time when you can least afford a stumble.
The PIO has a special role in this effort. We often hold our agency’s strongest local media relationships, and we’re frequently the first to learn of investigative reporting. We need to practice smart communication ourselves and we must encourage good practices throughout our entire agency. While this may sometimes put you in an uncomfortable position as you advocate for change, your perseverance will prove extremely valuable in the long run.
This to-do list can help you navigate the PRA maze:
- Watch your language – Strongly encourage your staff to never send potentially embarrassing or inappropriate comments via any method – email, text, voicemail, or app.
- Train staff – Laws change, staffs change, and communications tools change. Ensure your staff is up-to-date through periodic training.
- Include electeds – Schedule briefings with your policy leaders to discuss your retention policy, communications guidelines, and other PRA-related issues.
- Raise your antenna – As a major crisis begins to form, connect with those in leadership roles (Finance, HR, public safety chiefs, etc.) to learn what might prove embarrassing.
- Work with legal – Establish a strong relationship with your agency’s legal counsel. Although we sometimes approach issues from differing perspectives, counsel can explain the nuances of PRA issues and help navigate through challenging situations.
- Records are vital – Know what’s retained and how long records are kept; recommend updates as new technologies arise.
- Don’t delay – Warn staff about the possible results of always taking the full 10 days to respond to a PRA request. Unnecessary delays (“it’s allowed” isn’t typically a valid reason) can lead to frustration by the media, deeper reporting, and more damaging coverage resulting from a longer lead time.
- Expect social media deluge – Your stakeholders will react swiftly when a PRA-related story breaks. We no longer have days to ponder a response; we must immediately begin delivering our issue-related messages.
- Monitor the news – Crises in other agencies can often spur related PRA requests in your agency. If something is getting attention in a nearby agency, chances are good that someone will want to see if you have anything similar to hide.
- Stay nimble – Complacency can be our worst enemy, and the issue will likely not go away if it’s ignored. If prevention didn’t work, have a strategic plan ready to go in anticipation of the inevitable media storm.
Scott Summerfield provides crisis and strategic communications counsel to numerous public agencies and is the former Director of Communications for the City of Newark. David Newdorf provides legal counsel to a variety of public agencies, and is a former City of San Francisco Deputy City Attorney and former Contra Costa Times reporter.
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