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A case against the city of Encinitas offers a window into the subjective and arbitrary way that individual officials decide what is and isn’t a public record.
Encinitas has one of the shortest records retention policies in San Diego County. It deletes emails deemed unimportant to the public at 30 days. But that could soon change.
Next month, the City Council will consider a new policy requiring staff to hang onto emails for the same length of time that it hangs onto other types of records: two years. Mayor Catherine Blakespear, who has already signaled her support for that effort, said it’s important “we do show people what we’re doing.”
Many municipalities argue that emails are a special kind of communication, but the courts, the Legislature and public are increasingly pushing back on the notion that emails aren’t subject to the same California Public Records act rules as other government documents.
A deposition filed recently in an Encinitas public records-related case gives a good sense why. It is a window into the subjective and arbitrary way that individual officials decide what is and isn’t a public record on a timetable convenient for no one but themselves.
In April, Donald McPherson, an Encinitas property owner, sued the city for failing to release all written communications between officials and the development team that has been renovating the Portofino Beach Inn along Coast Highway 101. His attorney, Felix Tinkov, quickly turned his attention on the city’s practice of deleting emails at 30 days, and recently got a chance to interrogate an official about the process. (Disclosure: Tinkov also represents Voice of San Diego in public records disputes.)
Todd Mierau, an associate planner for Encinitas, said he prints out copies of emails and attachments that he believes are worth preserving long-term and places them in a physical file. Everything else gets deleted — typically within three weeks — before it “clogs” up his computer system.
“So we’re constantly deleting out e-mails that aren’t, in our opinion, important to the project,” he said. Later in the deposition, he explained that he often deals with “hard-copy studies” and does a lot of city business either by phone or in person.
“E-mails are kind of irrelevant,” he said.
Mierau also broke down his thinking on what makes for a public record and what doesn’t. An example of an email message not likely worth keeping: “We want you to see the window design.” An example of an email likely worth keeping: “Please provide ten sets of plans with the information as specified in the letter we’ve already previously given you.”
At one point, Tinkov asks Mierau to clarify whether he cleans out his inbox roughly every two weeks.
“Purge it — yeah — physically,” he responded. “There’s a lot of stuff received that way. It’s not important to the record, essentially.”
The implication in Mierau’s deposition is that emails for a city like Encinitas are largely an afterthought and only become part of the public record when they need to be. By deciding what’s worth keeping and what’s worth dropping, officials have given themselves near total control over what the rest of us can see.
Mierau’s thinking on retention is not unique. Most municipalities in San Diego County delete emails from their servers within the two-year state-mandated minimum for similar reasons. They argue they’re saving taxpayer money on storage and software, and the time of information technology employees who must navigate through the large swaths of data.
“Our server does not allow us to handle a certain number of emails,” said Paul Brencick, a management analyst in the Encinitas city manager’s office.
According to city policy, each member of staff is limited to 200 megabytes, except in special circumstances. Over the next fiscal year, the city is projected to spend $37,080 on server costs.
Kelly Aviles, an attorney who specializes in public records cases, told me that she finds public agencies’ financial justifications for deleting email records to be “insane.” Email storage costs are getting cheaper and cheaper, she said, while printing and physical storage is likely to cost more. But more importantly, she said, no one else is allowed to argue that they can’t comply with the law because they can’t afford to.
“I need tags on my vehicle,” she said. “I don’t get to say when I’m pulled over by police, ‘You know, it just costs too much these days; I can’t do it.’”
Because the California Public Records Act doesn’t specify emails, many public agencies across the state maintain that emails can be classified in different ways, depending on how useful that email could be to the public in the future. In other words, if an email preserves information that couldn’t be obtained elsewhere, it should be saved. Everything else is considered a draft and eventually public agencies discard it.
Indeed, the definition of a public record is intentionally vague under California law. But Aviles said that’s meant to ensure public agencies capture more, not less.
“Having those arbitrary destruction policies creates an environment where people can delete things they just prefer the public not have,” she said. “And that’s not the law. It flies in the face of the whole policy.”
Around the same time McPherson filed his suit in Encinitas, the ACLU sued Orange County on behalf of a homelessness task force, alleging that officials were violating several state laws, including the California Public Records Act. The Orange County Superior Court last week banned the county from enforcing its own records destruction policy. Judge Sheila Fell rejected the county’s claim that officials could delete records they deemed to be “transitory” — essentially a draft, not important to the public business — before the law’s two-year retention period had ended.
Encinitas expects its staff to review their emails at least once a week and print or file away permanent records in either a separate email folder or network location or physical folder. Anything “intended for a temporary purpose” should be “discarded after the purpose is achieve,” the policy states. “Care should be taken that no e-mails are retained unless they are meant to be official records.”
Each employee gets a finite amount of space for their inbox, and the city encourages staffers to “delete documents which are not otherwise required to be kept by law or whose preservation is not necessary or convenient to the discharge of duties or the conduct of the City’s business.”
In case they don’t, all incoming, sent and deleted emails that are older than 30 days are automatically deleted from the system daily. E-mails are not backed up on a permanent basis and according to city policy, only current emails can be restored if the system fails.
Tinkov said he’s asked the city to try to recover older records related to the Portofino project, but an IT staffer “didn’t have high hopes — she said the emails are ‘hard-deleted’ by the system.”
The Encinitas City Council is expected to revisit its email retention policy on Aug. 21. Brencick said the city had nothing to release to the public yet, but the conversation will likely touch on storage costs.
In the meantime, a bill written by San Diego Assemblyman Todd Gloria, whose district extends from Imperial Beach to Solana Beach mostly along the coast, would require government agencies to keep email records for two years. AB 1184 passed the Assembly in May and the Senate Judiciary Committee last week.