WHY ARE COUNTY AND SANTEE DELETING EMAIL RECORDS SOONER THAN STATE LAW ALLOWS?

By Miriam Raftery

March 25, 2018 (San Diego’s East County) – East County Magazine has reached out to officials in Santee and the County of San Diego after an investigative report by Voice of San Diego revealed that San Diego County is deleting emails after just 60 days, while the city of Santee retains e-mail records for just 180 days.  State law requires that email public records be retained for at least two years, according to Californians Aware, a nonprofit dedicated to preserving open government and access to public records.

Among East County cities, Lemon Grove has the best policy from the standpoint of transparency for the public and press, preserving emails indefinitely. La Mesa and El Cajon retain records for at least two years. But across the county, half the jurisdictions are ignoring state law and trashing emails far earlier.

Destroying public records is a crime punishable by a prison sentence under state law.  

In Santee, we reached out to Councilman Stephen Houlahan, the newest elected member of the City Council. He replied via email:

Thank you for bringing this issue to my attention.  I read the Voice of San Diego article and was disappointed to see Santee on the non-compliant list.I will ask the Santee City Manager about current policy and what the plan is moving forward.  I believe the City of Santee should be compliant and retain records for a minimum of 2 years.

My biggest concerns are the cost of maintaining the records; including upgrading antiquated technology and hiring additional personnel.

At the County level, we contacted Supervisor Dianne Jacob, who represents East County.  An aide to Supervisor Jacob provided the following information on background:

“California cities and counties operate under different statutes regarding this issue. The Voice story you shared focused on cities. The way county legal staff explained to me, neither the CPRA or state statutes related to the preservation and destruction of county records expressly address emails. However, the statutes do give the authority to put a data system in place that preserves emails that should be saved, allows for self-deletion and protects against the accidental disclosure of emails that include personal identifying information, law enforcement intelligence and other sensitive information. San Diego County’s policy includes training on the saving of emails considered highly critical and perhaps needed for litigation. As you know, the county also regularly provides available emails to members of the public or media who request them.”

But CALAWARE General Counsel Terry Francke disputes those conclusions.  In an e-mail to East County Magazine, after viewing the response from Jacob’s aide at the County, Francke sent the following detailed response:

Miriam, here are my reactions.

California cities and counties operate under different statutes regarding this issue. The Voice story you shared focused on cities. 

Both cities and counties are required to retain records for two years.

The way county legal staff explained to me, neither the CPRA or state statutes related to the preservation and destruction of county records expressly address emails. 

The CPRA does expressly address emails.  Government Code section 6252, subdivision (e) defines "public records" to include "any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." The term “writing”  is then defined in subdivision (g) to include "any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored."

However, the statutes do give the authority to put a data system in place that preserves emails that should be saved, allows for self-deletion and protects against the accidental disclosure of emails that include personal identifying information, law enforcement intelligence and other sensitive information. San Diego County’s policy includes training on the saving of emails considered highly critical and perhaps needed for litigation. As you know, the county also regularly provides available emails to members of the public or media who request them.

These statements simply don't engage with the fact of the state law minimum retention period for county records, which is two years and which does not exclude email records and which does not authorize destruction of any kind of records sooner than two years as a matter of discretion. 

What county counsel is no doubt relying on—without mentioning it—is the same AG opinion that many if not most local agencies look to in concluding that emails of merely "transitory" value can be destroyed as a matter of discretion despite state law requiring two years' minimum retention.  But that opinion dates from 1981—long before digital records and communication shrank the storage space for archiving, long before the California Constitution was amended to require that laws supporting public access to information be interpreted broadly, not narrowly, and long before the Public Records Act was amended to specifically state that electronic mail messages, like those on paper, are presumed to be available for public inspection and copying.

Similarly, Voice of San Diego obtained an opinion from Kelly Aviles, a lawyer for the First Amendment Coalition who is also Vice President at CALAWARE. “There’s nothing in the Public Record Act that says if an email is exempt [from disclosure], they can delete it,” Aviles said. “Nothing allows them to do that. There’s not a case that says that. Nothing permits them to do that.”

Last September, Los Angeles settled a lawsuit filed by the First Amendment Coalition after requested records were missing off city servers. The city agreed that state law requires records to be retained for at least two years.

East County Magazine has forwarded Francke’s rebuttal to Supervisor Jacob’s office and asked if Supervisor Jacob will take action to require that the County retain records for at least the two years mandated by state law.  

Such documents are important not only for litigation, as Jacob’s aide noted, but also for research by scholars, journalists, students, community activists, companies researching the history of projects, and others seeking these public records.  

Our own publication has frequently sought and obtained records in other jurisdictions long after the meager 60 days that the County is retaining emails, often finding valuable background information, facts, and at times, evidence of questionable actions by public officials. For instance, one email records request documented that a school superintendent had ordered a report on whether his district was violating the California Voting Rights Act destroyed the same day it was received.  

We have sent this article to California Attorney General Xavier Becerra’s office to inquire if his staff will be looking into prosecuting cities and counties violating state law regarding retention of e-mail public records.