Background:
In attempting to gain a better understanding of the various and ongoing Wetlands land swap proposals and negotiations, city resident and environmental activist Tom Marchese filed a Public Records Act (PRA) request with the City Attorney’s office for all pertinent City emails on the topic. He felt (and the emails delivered in response tend to indicate) that some City representatives might not have the People’s best interests in mind during these negotiations. Learn more about the California Public Records Act here.
In response to Mr. Marchese’s request, the City delivered some 377 pages of City emails but it quickly became clear to him, and others with whom he had shared them, that there were significant gaps in the disclosure… emails that he and others knew, of a certainty, had been sent to City officials concerning the Wetlands negotiations (because they, themselves, had sent them) but that were not included in any of the 377 pages received.
The reasonable question from many: “Why the obvious gaps? We know more emails exist(ed), why have they been withheld?” Mr. Marchese filed a second PRA request asking for more. The City Attorney declined this second request, explaining that some documents had been withheld originally due to attorney/client privilege; a lawful exemption to PRA, intended to protect confidential communications between the City Attorney (and the other attorneys in his office) and his “client”… all elected and appointed City officials and employees.
Closed Session:
Shortly following the disclosure of the original 377 pages, and the considerable public and Council scrutiny and discussion they created, Councilmember Schipske requested, and City Attorney Shannon urged, the Council to enter closed session (which they did on May 5) to discuss the entire Wetlands issue further as well as to determine whether or not to waive the privilege related to some of the documents and authorize their full and complete release in response to Mr. Marchese’s second PRA request..
During that closed session the Council voted 6-3 against waiving the privilege (Schipske, Reyes-Uranga and Garcia in the minority). The documents in question would remain attorney/client privileged communications. This decision didn’t sit well with many… Mr. Marchese included… some of whom clearly hadn’t fully understood who the City Attorney’s client is and what that can sometimes mean for the People… a withholding by the City of otherwise public records.
Confidentiality Required:
Following the closed session; Mr. Shannon explained the exemption during a small and impromptu press conference in his office. As reported by thedistrictweekly.com, Mr. Shannon stated:
“These (documents) are communications between an attorney and a member of management. I want to emphasize that. They are not communications with (Wetlands Owner Tom) Dean.
“Releasing them,” Shannon said, “Could irreparably damage the city’s ability to conduct secret negotiations.
“We cannot send the message that these documents will be released,” the city attorney said. “It would kill our ability to do confidential business.”
A certain level of confidentiality, especially in real estate negotiations with private parties, is often a critical factor for eventual success.
Despite this truth, Mr. Shannon’s response does not jibe with the firm belief of Marchese and others that some of the emails on the topic that they, themselves, had sent to City Officials were, indeed, missing from the disclosure and, by Mr. Shannon’s own definition, should not have been either considered privileged or withheld.
City Public Records Retention:
Of course that’s not the only possible explanation for why those emails are missing. Another, offered by Asst. City Attorney Mahood during a particularly enlightening exchange with Council member Schipske at the April 21st Council session, is that they were simply deleted from the recipient City Officials’ computers and thus “not kept in the normal course of business.” Not that these communications weren’t originally part of the normal course of business, they simply weren’t “kept” by the recipients and so, not provided to the City Attorney during the PRA request and, so, not disclosed.
These comments from Ms. Mahood proved considerably less than satisfying; to Ms. Schipske, to the Council audience and, indeed, to yours truly. Public Records must, by law, be retained according to specific and definitive guideline documents called “Records Retention Schedules.” These guidelines vary from City office to City office but they do exist and are periodically updated and revised. The very purpose of Records Retention Schedules is to prevent the arbitrary deletion of public records such as emails sent to or from City officials “in the normal course of business”.
But no one, from Mayor Foster on down, seemed entirely clear on what these Records Retention Schedules stipulate. So I decided to file a PRA request of my own, asking for a copy of all City Records Retention Schedules, regardless of Department or Office, and I received all of them promptly.
According to the Mayor and City Council’s Records Retention Schedule, for example, records considered to be “Correspondence” (which, it’s safe to assume, includes emails) must be retained at the respective Department (or Office) for two (2) years. After that they can be transferred to the City’s “Record Center” where they must be kept for an additional two (2) years, and only after that total of four (4) years, can they be destroyed (or deleted).
The only other category of document in this Retention Schedule that may include emails such as those Mr. Marchese and many others are concerned about is one entitled “Constituent Files” but that retention schedule is identical to that of “Correspondence”; 2, 2 and 4.
It appears, then, that if Ms. Mahood’s hypothetical proves correct, and some constituent-originated emails were deleted from either the Mayor or any Council member’s computer before the four (4) year “destroy” deadline, then it would seem that those emails were deleted in violation of the City Records Retention Schedule for the Mayor and Council as adopted on October 2, 2007.
This is not to say that if such deletions occurred that it was necessarily done maliciously or even knowingly. It seems clear from their various comments at Council that our Mayor and at least some of our Council members have no idea what, exactly, is stipulated in the City Records Retention Schedule that applies to them. While ignorance on the part of any City official of such policies should not be considered acceptable, it could certainly explain the very genuine perplexity on the part of Ms. Schipske, Mr. Foster and some others, as relates to this topic.
Some Constructive Suggestions:
In our Constitutional Republic, government exists and functions solely by consent of the governed. Because of this fact, it’s critical that the People be able to have faith and trust in their elected and appointed officials and the manner in which they conduct the People’s business. Challenges like this tend to erode that essential public faith and trust. Here’s one way this can be corrected:
First; the City Auditor, City Attorney and City Clerk should collaborate and review all City Records Retention Schedules and update them as appropriate. Some of these schedules haven’t been updated since 1975.
Email retention, in particular, should be reviewed and a method of retention and recovery devised that is not, in any way, dependent upon whether or not a given official happens to understand how to properly archive or when to hit or not hit the delete key on his or her computer.
Second; The City Attorney should re-educate all elected and appointed City officials concerning the content of the now-updated Schedules, why it’s important that they be fully adhered to and then City Information Management should remind all City officials precisely how to do comply with the laws in this area.
Third; Once items 1 and 2 are completed the Mayor and Council should publicly acknowledge any error, inadvertent or otherwise that may have occurred in this area and clarify for their constituents precisely what they have done to prevent such errors in the future.
If our City officials take these or similar steps in the immediate future, I believe public trust in City Government can be at once improved and better maintained.
I very much welcome your questions and your comments.
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