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Chilling effect of SLO Tribune’s record request quagmire

April 28, 2025

Henry Krzciuk

OPINION by HANK KRZCIUK

The SLO Tribune versus Paso Robles versus a council member versus each other’s legal quagmire over “business records” on personal devices sends a chilling message. The message is to think twice about wanting to get on a community services district board, city government council or a standing committee.

This is all about many “public records” that the Tribune wants that might be on a councilman’s personal phone or computer. There have been lawsuits in every direction, and most recently, the City of Paso Robles took legal action against the council member.

The Tribune’s demand for certain records on a personal phone or computer may be legally possible, given the 2017 Superior Court ruling in the City of San Jose v. Ted Smith. It ruled that “business” records on personal phones and computers are public records demandable under the California Public Records Act.

I live in San Simeon. A San Simeon Community Services District director gets paid $100 per meeting, which means you are basically volunteering your services. The pay is roughly the same for all special districts in the state. As far as I know, members of a district’s standing committee are paid nothing but are also subject to producing records that may be on their personal phones and computers.

Does your community services district say it is up to you to produce whatever records are requested and that your opinion is sufficient to determine what records, text messages, etc., are government business records?

What if you deleted some text messages or emails to keep your mailbox clean?

What if you made what you thought were private messages or recordings related to government business, but they contained negative or off-color comments about other district members or employees, news organizations, or members of the public, etc?

This is complex. Who decides how far your district or city will go? Will your word about certain records being district business or deleted because they were old be good enough?

Or can they demand that you turn over your personal computer, tablet, and cell phone so that a third-party forensics company can search your devices?

Does your local government have clear policies regarding “business records” on personal devices? Will they defend you against lawsuits? Or will they sue you to avoid or settle a lawsuit against them?

In Paso Robles, the answer is no; they will sue you.

In San Simeon, we had a new board member who is an attorney. She knew the law and made the district buy her a laptop/tablet for district business. I don’t think she demanded a separate cell phone or other special phone number from the district. As a practicing attorney, she knows how to handle these matters and can defend herself.

Even if your government agency provides you with a separate personal computer, tablet, and/or cell phone for district business purposes, will they still target your personal devices?

What about the rest of us who effectively volunteer for board positions or to become a member of a standing committee? If you receive district emails on your personal computer, send district-related texts, or make recordings, your personal computer and phone could be searched, and your community government could sue you.

If you are like me, in retirement, who can afford expensive attorneys to fight your local government or a newspaper with unlimited time and money for years-long lawsuits?

Plus, who wants to give up their personal computer, tablet, and cell phone so that someone else can search them and make whatever they decide public (even with some redaction)?

What is happening with the Tribune, the City of Paso Robles, and the council member sends a chilling message to citizens wanting to volunteer to serve on local boards and standing committees.

Before volunteering, I strongly encourage you to review your community’s local policies. According to Sunday’s Tribune cover article, most communities do not have clear policies on keeping or seeking “business records” from personal devices.

 


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Hank’s opinion piece does shine a light on the lengths the Tribune is going to “get” a city council member. The CPRA does not specify how quickly records must be turned over, the only requirement is that within 10 days the recipient must identify if there are records that are responsive to the request.


Compiling the records, in many cases, does take a long time. Clearly the Tribune has asked for a lot of material.


Several years ago, I asked for records from the County and it took over two years for Rita Neal to meter them out a little at a time. There was nothing I could do because the effort was being made.


The only obligation Bausch, or any other staff, committee member or elected official has is to turn over what is directly related to agency business. They are not required to turn over personal conversations that have nothing to do with the agency.


As a busy professional, it likely will take a long time for Councilman Bausch to cull through his emails and cellphone to address the request.


As a frequent user of the CPRA request, I often say, “you can’t change history”, and have to be patient when waiting for the record to be collected, reviewed by legal counsel and then turned over.


7

Julie, would you not agree that the easiest solution would be for these individuals to use the government provided email accounts for official use and not use their own? That way it is easy to comply with the 10 days rule simply by affirmation that no board related emails are contained in their personal mailbox. If better practices were put in play the Tribune would not be getting anyone.


The Board’s IT admin could easily supply all emails requested without hassle for the board member. They could have board provided cell phones too. Separation is not hard to do.


It becomes exponentially more difficult if Board Member’s knowingly intermixed the their mail as a way to avoid scrutiny and Brown act obligations. Which is on them.


I don’t have patience for government officials complaining about complying with transparency laws so the public remains informed. Suck it up and comply with the law.


1

MrYan, what you are saying is not so easy to do. Relative to government-provided email accounts, one still needs to be given a separate laptop or tablet with a keyboard to keep all records storage separate from personal email etc. How many communities do that?


Secondly, you make a quick comment about cell phones. Should you be given a separate cell phone to carry at all times? I am unaware of any community doing that and who wants to carry a second cell phone. Yesterday, the judge involved suggested that the council member turn over his personal computer and cell phone to Paso Robles.


When broadly worded general CPRA requests are made, as the judge noted was done here, the CPRA can become a harassment tool.


My piece focuses on volunteer government participation and the burden it can place on individuals. Its purpose is to raise awareness. I am thankful that people are still willing to volunteer for local government.


0

Start the recall of Bausch please. No more bullies on the city council


0

If you are planning on serving on any such public board, you better plan on having an email address only for that purpose and same with a phone. Nowadays, there is a decent chance that you may have to turn over emails, texts and maybe even the devices through discovery or an investigation. Just don’t commingle your private life with your public service.


20

Solid advice. The article mentions that being on a CSD standing committee also exposes you to these risks. That’s one I hadn’t thought about. Whoa!


15

All very good points. What’s next? TT thinks there are public records on a judge’s personal cell phone, and wants it searched by a third party of their chosing? There was a recent case in Texas where a majority of city council members and city officials ganged up on one city council member. Some aspect of this case ended up at SCOUS, and the isolated city council member won. Attackers should think twice least their legal weapon of choice be turned on them.


9

There are regular opportunities for those who serve on a board to get Leadership Training and education regarding complying with State law. The training is paid by the Board. Brown act training. Cue Julie. I am sure you had been given an opportunity to receive it. A warm body on a board is not enough, if you volunteer you should also be informed, primarily for the reasons listed above. It is for your, and the district’s benefit.


13

The Brown Act and the California Public Records Act are not one in the same. New rules related to the CPRA include access to personal devices.


0

I was not implying they were the same, rather there is a lot to learn for board members to be effective, CPRA and Brown Act being just two. It is a tall stack. So tall most don’t climb through it, and expose themselves scrutiny from self appointed Government watch dogs or news organizations ;-)


2

“What if you made what you thought were private messages or recordings related to government business, but they contained negative or off-color comments about other district members or employees, news organizations, or members of the public, etc?”


Anyone making disparaging remarks that are recorded deserves what they get.


-11

“Anyone making disparaging remarks that are recorded deserves what they get.”


Wrote the person hiding behind a pseudonym. Your bravery is noteworthy.


3