I am looking into the relationship between lobbyists, the Army Corps of Engineers and elected officials and staff of the City of Imperial Beach. This has to do with possibly up to $70 million in federal and state funds.

Do cities have to archive or have a method of preserving elected official email? Imperial Beach allows council members to use their private emails and city clerk told me that there is no process or policy for preserving their emails.

I imagine this is an issue statewide? Are they in violation of the Public Records Act.

Is this something I should have the State Attorney general look into. I am concerned there could be an implicit message from city staff to not use official email to conceal discussions regarding use of funds to pay lobbyists and to conceal information related to these federal proejects.

Thanks,
Serge Dedina
Executive Director
WiLDCOAST

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Since I am concerned about city of IB officials using their private email and having their official correspondence be made available to the public, I did some research. This is the response. Whether or not it is legal or is really waiting for a court to make some important case law. The fact is that Imperial Beach has no policy about preserving private emails that are used for public business or believes it is in the public interest to have elected officials use public email addresses. This is an issue of good government.

As usual my query to our City Manager about this issue was met with a sarcastic and non-helpful response.

Serge

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Dear Mr. Dedina:

Holme Roberts & Owen LLP is general counsel for the California First Amendment Coalition and responds to CFAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

In some respects, open records laws and court decisions interpreting them have not caught up to certain modern realities surrounding e-mail and related technology.  The retention of personal e-mail used for government business is a prime example that includes two different — and both potentially challenging — issues.  One is the use of a personal communications mechanism for conducting government business, and the other is the retention of e-mail.

E-Mails About Government Business From “Personal” E-Mail Accounts

It is clear under California’s Public Records Act that “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,” must be disclosed to the public unless a provision of the PRA exempts it from disclosure.  Govt. Code Section 6252-6253.  The term “writing” includes e-mail.  Govt. Code Section 6252(g).

If a government official uses a personal e-mail account to send messages relating to the conduct of the public’s business, there would seem to be a strong argument that those messages should be public.  Otherwise, as you suggest, important government business could be conducted in secret.  How a court might decide the question is not certain, however, and would depend in part on the facts of the particular case.

In January 2007, a newspaper in Tracy, California, requested communications between city officials and the Lawrence Livermore National Laboratory.  Although the city produced certain e-mails, it did not produce e-mails between a city councilwoman from her personal e-mail account and the lab.  After the newspaper sued for the release of the e-mails, the trial court decided that the councilwoman was not a “local agency” subject to the PRA and that the writings of an individual council member that were not prepared, owned, used, or retained by the city were not “public records” subject to the PRA. Tracy Press, Inc. v. Superior Court, 164 Cal. App. 4th 1290, 1294 (2008) (dismissing on procedural grounds the newspaper’s attempt to have appellate court overturn the trial court’s decision).  The Court of Appeal said that “[i]f [the councilwoman] had e-mailed from the City’s offices, discussing City business, it is undeniable that the records would be ‘public records’ that must be produced.  But this proceeding presents a novel and important issue: whether personal e-mails sent without using the City’s resources but discussing the City’s business are ‘public records.’” Id. at 1300.  Unfortunately, the Court of Appeal disposed of the case on procedural grounds and never reached the substantive issue.

Not surprisingly, this issue is being raised all over the place.  In Colorado a newspaper sued for access to the Governor’s personal phone records, as he was said to often conduct government business using a personal cell phone.  A Colorado court rejected the newspaper’s suit in October.  See http://www.rcfp.org/newsitems/index.php?i=7103 <http://www.rcfp.org/newsitems/index.php?i=7103> ; http://www.denverpost.com/ci_10720721 <http://www.denverpost.com/ci_10720721> .  For similar issue related to Governor Palin’s “personal” e-mail account, see http://www.adn.com/sarah-palin/story/526281.html <http://www.adn.com/sarah-palin/story/526281.html> . For treatment by Obama administration of personal e-mail accounts used to conduct government business, see http://politicalticker.blogs.cnn.com/2009/02/19/republican-wants-white-house-e-mail-plan/ <http://politicalticker.blogs.cnn.com/2009/02/19/republican-wants-white-house-e-mail-plan/> .

Retention/Archiving Government-Related E-Mails

As to the second issue you raised, issues of e-mail retention (or document retention in general) are a bit complicated even when the e-mail is from a government account.  Whether the same laws that govern retention/destruction of government records also apply to e-mails relating to government business that are sent from a personal account would probably be a matter open to debate.  

With respect to city governments, Government Code Section 34090 requires that the city retain any record that is less than two years old:

Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney, the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required. This section does not authorize the destruction of:

(a) Records affecting the title to real property or liens thereon.
(b) Court records.
(c) Records required to be kept by statute.
(d) Records less than two years old.
(e) The minutes, ordinances, or resolutions of the legislative body or of a city board or commission.

Govt. Code Section 34090.

Section 34090.5 further provides that:

Notwithstanding the provisions of Section 34090, the city officer having custody of public records, documents, instruments, books, and papers, may, without the approval of the legislative body or the written consent of the city attorney, cause to be destroyed any or all of the records, documents, instruments, books, and papers, if all of the following conditions are complied with:

(a) The record, paper, or document is photographed, microphotographed, reproduced by electronically recorded video images on magnetic surfaces, recorded in the electronic data processing system, recorded on optical disk, reproduced on film or any other medium that is a trusted system and that does not permit additions, deletions, or changes to the original document, or reproduced on film, optical disk, or any other medium in compliance with Section 12168.7 for recording of permanent records or nonpermanent records.

(b) The device used to reproduce the record, paper, or document on film, optical disk, or any other medium is one which accurately and legibly reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document images.

(c) The photographs, microphotographs, or other reproductions on film, optical disk, or any other medium are made as accessible for public reference as the original records were.

(d) A true copy of archival quality of the film, optical disk, or any other medium reproductions shall be kept in a safe and separate place for security purposes.

However, no page of any record, paper, or document shall be destroyed if any page cannot be reproduced on film with full legibility. Every unreproducible page shall be permanently preserved in a manner that will afford easy reference. For the purposes of this section, every reproduction shall be deemed to be an original record and a transcript, exemplification, or certified copy of any reproduction shall be deemed to be a transcript, exemplification, or certified copy, as the case may be, of the original.

Finally, Government Code Section 6200 provides that:

Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:

(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.

It is possible that under the PRA an agency might be required to allow a member of the public to retrieve a deleted e-mail from the agency’s backup tapes or using other technological efforts, though the requester might have to bear the costs of the recovery.  Again, whether a government official could be required to submit his or her “personal” computer for recovery efforts is uncertain and would likely depend to a great extent on how the first issue above is decided.

I hope this information is useful.  Best of luck to you in your efforts.

Sincerely,
Katherine Keating

Katherine Keating
Holme Roberts & Owen LLP
560 Mission Street, 25th Floor
San Francisco, California 94105-2994