You have a right to privacy in your personal cell phone if your public employer demands to search or access your personal cell phone.

If your employer demands that you allow them to search or access your personal phone, you should immediately contact an attorney at Goyette Ruano & Thompson.  GRT will assert your right to privacy guaranteed by Article 1, Section 1 of the California Constitution and well established case law. If there is no nexus between your personal cell phone usage and your employment, you have no duty to provide access to your cell phone, and your employer has no legal right to access your personal cell phone.

Certain situations may arise wherein you have used your personal cell phone for work related purposes such as text messaging coworkers regarding a work project or taking pictures of a work project. It is important to note that if your employer seeks to obtain work related text messages or photographs on your personal cell phone you should immediately contact GRT.  After careful consideration and analysis, GRT can determine if it is appropriate to provide your employer with ONLY copies the requested text messages or photographs but not give your employer carte blanche access to your personal cell phone.

Lastly, it is important to note that in 2017 the California Supreme Court held in City of San Jose v. Superior Court, that a public employees’ digital messages existing in private electronic devices (e.g., smartphones and computers) or in personal messaging accounts (e.g., Gmail and Hotmail) are presumptively open to public disclosure under the California Public Records Act if they concern “the conduct of public business.” Under the Court’s holding, digital messages constitute public records subject to disclosure under the CPRA if they are written by a public employee, and they substantively relate to public business. If these two requirements are met, a message is a public record even if it exists in a single public employee’s device or account and is not maintained or controlled by the public agency. If anything, a public employee should avoid using their personal cell phone to conduct “public business” or be very careful to manage such communications with potential disclosure in mind. If you are advised by your employer that you are the subject of a Public Records Act request for text messages or emails maintained on your personal cell phone, you should immediately contact GRT to assess the request and determine if your cell phone contains messages or emails that are sufficiently related to “public business.”  Regardless, you should never give your cell phone to your employer.
David Garcia