Many that attended the April 21st City Council meeting, including some Council members themselves, were amazed to learn from Chief Assistant City Attorney Heather Mahood that not all official City emails are necessarily retained by our elected and appointed officials nor are they always required to be.
Ms. Mahood made it clear that all City Offices and Departments (including the Council and Mayor) have what are called records “retention schedules”, that these schedules sometimes differ from office to office and that they provide guidance to our officials on what must be retained, how and for how long.
These record retention schedules are unfortunately not available online (they really should be) and I have now submitted a Public Records Request (or PRR) to the City Attorney for a copy of “any and all City Records Retention Schedules”. I’ll update this column when I receive them.
Ms. Mahood also opined (quoting): “…the California Public Records Act (or CPRA) only calls for disclosure of those records that are kept in the normal course of business and, if you have an email that’s been deleted, it’s not kept in the normal course of business”.
The California Public Records Act is codified at California Government Code (CGC) Section 6250 et seq. CGC Section 6252(e) defines what a public record is. Further, in 1999, California Government Code Section 12236 established the “Local Government Records Program” (or LGRP) to be administered by the State Archives to establish guidelines for local government retention and to provide archival support to local agencies in this state.
I encourage my readers to review these laws and the LGRP website before proceeding. The LGRP website will tell you that the program is “a work in progress” and, although the portion of CGC 12236 that talks about “archival support” sounded promising, there’s unfortunately no mention of that on the program website.
The City Attorney’s position appears, to me, to be that the City is only required to disclose those normal-course-of-business emails that are “kept” (i.e. retained) and that if they are deleted by a given City official then they aren’t “retained” and so the City needn’t disclose them.
The concern this position creates on the part of some is clear: How can the public feel confident that all non-exempt public records are being disclosed when all any official need do (intentionally or not, maliciously, negligently or otherwise) to prevent or obstruct public records disclosure is to delete it from the individual City email box?
I think we can, and should, do much better than that.
I’m on record, elsewhere, that I think we (the City) need to change the way we handle Freedom of Information Act (FOIA) and Public Records Act (PRA) requests. In this day and age of high-powered computers, electronic communication and digital archiving of paper documents, there must be some reasonable, reliable, efficient and inexpensive manner in which to store and retrieve all non-exempted public records for later public review as needed.
When we leave the retention or retrieval of requested email documents to the discretion or the personal computer abilities of a given public official, especially one who could be the subject of an investigation or inquiry, we compromise, intentionally or otherwise, the very spirit of FOIA and the PRA and the concepts of government accountability and transparency upon which FOIA and the PRA are based.
Some feel the City’s current PRA request process to be “arbitrary.” This is why retention and recovery shouldn’t be left to an individual official’s discretion or ability. But “arbitrary” needn’t necessarily be malicious or even negligent. It may well simply be a case of different priorities. The Public and their elected and appointed officials don’t always prioritize in the same manner, although in a perfect world they would.
The Council member who receives 100 emails and phone calls a week about quality of life issues throughout their District like graffiti, damaged sidewalks, potholes and abandoned cars and neglected structures probably prioritizes each about the same, but each constituent certainly feels their particular complaint is more important than anyone else’s.
Consider this hypothetical: City emails concerning a broken section of sidewalk that’s been reported as repaired may, indeed, seem unnecessary and, thus, disposable. But suppose we hired a contractor to repair our sidewalks (we do) and suppose that contractor reported to us (intentionally or in error) that the sidewalk in question had been properly repaired. They billed us for the work, but the sidewalk in question was, in fact, not repaired properly or never got repaired at all. This could happen, yes?
Now let’s suppose that the broken condition of that sidewalk ended up being the proximate cause of serious trip and fall injury one week later, where an elderly victim initially broke her hip, spent an extended period of time in the hospital, and eventually died due to her advanced age and frail condition. This, too, could happen, yes?
We (the City) could be on the hook for extensive compensatory damages… medical costs in the millions of dollars and even wrongful death liability exposure through negligence.
In our hypothetical, there’s now a real potential for City liability and thus the retention and recovery of the original and subsequent emails could prove crucial to nullifying or at least limiting that liability.
This hypothetical helps us understand why public records, including seemingly innocuous emails, “containing information relating to the conduct of the public’s business,” not only should but must be retained.
Because we can’t possibly know, of a certainty, what public records will or won’t prove important and thus “retainable,” we should retain *everything* that’s applicable for the time periods recommended by the California Secretary of State (3 years for general/public administrative correspondence).
Maybe these changes will cost a lot and maybe they won’t, but what’s the potential cost of failing to do so? How much will the trip and fall victim’s medical expenses and wrongful death liability cost us if we can’t prove that we acted on the broken sidewalk complaint in a reasonable and timely manner and were assured by our contractor that it had been properly repaired?
Moreover, what are the potential non-monetary costs to local government when the confidence of the electorate is undermined because we did not make these changes? The gasps from the crowd in Council Chambers on April 21st in response to Ms. Mahood’s opinion concerning certain aspects of City email retention were clearly audible even on the video.
Such a response of disbelief and disapproval from even that small a segment of the electorate cannot possibly bode well for the elected in any jurisdiction, ours included.
In our Constitutional Republic, government is a construct of the People, and exists entirely at the consent of those governed. The electorate must have confidence that its government exists to serve them and to be fully responsible and responsive to them. The electorate must have confidence that, in the conduct of the People’s business, all non-exempt public records are retained as required by law and then fully disclosed when requested.
In Council Chambers on April 21st, this confidence was shaken considerably.
I very much welcome your questions and your comments.