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Saturday, Feb 18 2012 09:00 PM

Government email policies run the gamut in California

BY ANTONIE BOESSENKOOL Californian staff writer aboessenkool@bakersfield.com

Suppose you want to know how your city administrators decided where to buy new police cars. Or why the mayor is getting a raise. Or what city council members talked about when they looked at redistricting proposals.

Suppose some of that information is in emails.

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EMAIL POLICIES VARY

The Californian reviewed email policies from 25 cities and counties across the state ranging in size and geography. Policies vary from not addressing email specifically, like Chula Vista's, to those that address it directly, like Kern County's.

Escondido's policy says the email system will be purged every 90 days and any emails that need to be saved are to be printed or saved electronically. It also advises employees that both those saved files and anything in an email system is subject to disclosure under the Public Records Act.

Stockton employees keep emails until they're "no longer required." If an email has a material impact on Stockton's business, it's saved and kept as part of the record it relates to. If an email has been deleted, it could be recovered from backup tapes if it's not older than 90 days.

Long Beach's policy addresses not just email but instant messaging. Emails and IMs about city policy, decision-making, proceedings, projects, contracts or other material that might be important for the city's business later are saved in line with the city's records retention schedule based on the content.

San Francisco County emails fall under the category of "communication logs" and are kept for three years.

Visalia directs employees to save any emails that aren't "preliminary drafts, notes, or ... memoranda that are not retained by the public agency in the ordinary course of business." Anything that's a public record and not just a note has to be printed or saved electronically. Anything not saved is deleted after 30 days.

Pasadena archives for two years emails that employees delete from the email system. Emails that aren't deleted are kept indefinitely.

In Pasadena, you might be in luck. The city archives emails, even deleted ones, for at least two years. In Fresno, they keep all emails indefinitely. But in Riverside, which deletes emails after 30 days unless an employee specifically saves them, you might not get all the information you're seeking with a public records request.

And in Bakersfield, if what you're looking for is more than 30 days old, you might be out of luck. Unless city employees save them, emails are automatically deleted after 30 days, or after 14 days for the city manager, city clerk and risk management offices.

California law says any writing about "the conduct of the public's business" from a government agency is a public record. But policies on keeping emails vary widely, as discovered by a Californian review of polices in 25 cities and counties in the state.

Why do the policies matter?

Because "email has become the means by which groups of people make decisions," said Peter Scheer, executive director of the free speech and open government advocacy group the First Amendment Coalition.

"If ... the public has a right to know how decisions and policies are made, that seems natural to allow access to the records that are truly a record in real time of that decision-making process," Scheer said. "People want the real deal, not propaganda."

FLEXIBILITY

A key reason for the varying policies is that while emails can be public under the California Public Records Act, public records aren't defined under the separate state law covering records destruction, several officials said. That destruction law prohibits destroying "records" that are less than 2 years old.

"The Public Records Act is not a retention statute but a records access statute," said Eric Danly, chair of the League of California Cities Public Records Act Committee. He's also the city attorney for Petaluma and Cloverdale.

In other words, the act doesn't say how long emails need to be kept, only that they can qualify as public records.

And that's OK, Danly said. It leaves some flexibility for local governments to deal with the vast amounts of information in emails while also complying with the law, he said.

"If someone were to suggest ... that every single email received by a public agency needed to be retained regardless of accuracy or helpfulness, that could impose significant cost and burden on the public," Danly said.

The law is "workable the way it's written," he said, but he did add, "It's arguably still a developing issue."

For sure, the day-to-day business of local government generates a lot of email.

San Jose Public Records Manager Tom Norris received a request from the American Chemical Society for information on how the city created its policy blocking stores from handing out plastic bags. A lot of that information was in emails.

So Norris went through about 17,000 emails to answer the request. It took him about a week.

"(It was) like going through a bunch of hay looking for the needles," Norris said.

Employees are to electronically save or print out emails that need to be retained as city records, he said. Norris has posted guidelines outlining what could be considered for retention, noting those documents could be disclosed under a request.

Anything not saved is supposed to be deleted after 90 days to help avoid the prospect of reading 17,000 emails for one public records request, according to Norris.

San Jose's policy, like many others The Californian reviewed, says the content of an email determines how long it needs to be kept. For example, an email containing a contract will be kept longer than an email announcing a meeting time.

Scheer doesn't buy the argument that because the Public Records Act doesn't spell out how long to retain records, email retention policies can have some flexibility.

The law says documents created or used by a public agency are public records, not just those that are retained, he said.

"Suppose you request some public records, and they say they exist. And when you go to pick them up, they say we just destroyed them," Scheer said. "The logical extension to that argument is every time someone requests public records, all you have to do is destroy them (to not disclose them). I don't think the people would be very pleased."

NOT EXPERTS

Several policies reviewed by The Californian rely on government employees to decide what emails could be public information or otherwise need to be kept.

The problem is, it's unreasonable to expect every employee to know what constitutes a public document, said Scheer of the First Amendment Coalition.

"(Governments with deletion policies) are asking all employees to be legal experts on the Public Records Act," he said. "That's just not going to work. They are inevitably going to make mistakes."

But John Devlin, technology services division chief for the county of Kern, thinks employees can be trusted to know the law.

"There's a certain level of trust that we have in our employees to know that," he said. "You have to use common sense."

Kern County's policy says what's in an email determines how long it's kept. "Non-transitory" emails about county business must be printed out or moved to electronic storage. Those are kept as long as its content dictates.

"Transitory" emails, like one noting the time of a meeting, are destroyed once they serve their administrative purpose.

But there are shades of gray. If his department spends more than $5,000 on some service, Devlin keeps the related emails. But something like "These three plumbers are available to unclog our sink" is less consequential, he said.

Ventura County considers all emails "preliminary drafts, notes or interagency or intra-agency memoranda not retained in the ordinary course of business," which under the Public Records Act don't have to be disclosed, said Ventura County Counsel Leroy Smith.

Ventura tells staff not to use email for communication that constitutes a public record. Employees are to print out or electronically save any email they need to have, and that record then becomes the public record.

"If we follow that we can righteously say emails are not public records," Smith said.

He likens emails to phone calls, and making them all public could have a chilling effect on communication.

Nevertheless, the county doesn't delete emails out of the email system for two years, though it encourages employees to clean out their email inboxes every few months, Smith said.

"We don't want to be accused of deleting public records too early," Smith said.

But after looking at policies in other jurisdictions, the county is considering shortening that two-year period to 90 days, he said.

BAKERSFIELD'S POLICY

In Bakersfield, council members asked staff to look into the city's policy after Californian columnist Lois Henry wrote about the city's practice of deleting emails after 14 or 30 days. The legislative and litigation committee is set to hear from staff on the issue Tuesday.

City Attorney Virginia Gennaro said the city's policy is in line with state law. "Our stance is that we are unaware of any law ... that requires the city to retain emails," Gennaro said.

Emails can be defined as public records under the Public Records Act, but the act doesn't say cities have to retain records, she said.

City staff can interrupt the auto-delete process by selecting emails to save, electronically or through printing them. They can also be loaded onto the city's Laserfiche archive system that the public can search. What's saved is left up to each employee.

But not all emails relate to the public's business, she said, such as junk emails or emails on laws.

Each city department has its own retention schedule, but none requires email as a category to be retained. For example, the city clerk's retention schedule says "internal correspondence" has to be kept for two years. But Gennaro said emails don't fall under that category just because they're emails, but are retained based on content.

"When you think about it, (emails have) pretty much replaced the phone," she said. ""The law really hasn't kept up with the technological advances of the computer. That's particularly evident when talking about emails."

Smith of Ventura County agreed.

"The statute needs to be modernized," he said. "It was not originally designed for all these social media communications. ... It's archaic; it needs to be updated."

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