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North County Report: Encinitas' Email Deletion Policy Under Fire

A bill by Rep. Mike Levin could move millions of pounds of nuclear waste out of the San Onofre power station a little faster, the woman who accused Assembly candidate Phil Graham of battery is headed back to court and more in our biweekly roundup of North County news.

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The Portofino Beach Inn along Coast Highway 101 has been a cause of consternation ever since the owners proposed converting it into an upscale boutique in 2017. Encinitas residents cried foul over the possible influx of cars and intoxicated tourists.

The hotel is now at the center of another dispute — over public records — and this one could have far-reaching implications for cities and counties across the state that can hardly wait to delete their emails.

In January, Donald McPherson, an Encinitas property owner and retiree, requested copies of communications between the Portofino development team and city officials. But according to the lawsuit he filed last week in San Diego County Superior Court, the city made two missteps. It produced records for a different hotel project, and the ones related to the Portofino inexplicably ended at May 2018.

City officials insisted that no further correspondence existed, but McPherson and his attorney, Felix Tinkov, who specializes in public records law, found that explanation odd. (Disclosure: Tinkov also represents Voice of San Diego in public records disputes.) The hotel designs had been reintroduced in September 2018 after an 18-month delay gave the owner more time to negotiate with his unhappy neighbors, according to the Coast News.

Those designs are going before the city’s planning commission Thursday and included in the hundreds of pages of documents for the meeting are communications dated late 2018 and early 2019 — which McPherson had requested but never received.

Tinkov told all this to a judge Monday. They agreed to talk privately outside the courtroom and report back in a few weeks.

Although it wasn’t their intention at the outset, McPherson and Tinkov are now taking aim at something much bigger than the Portofino. They’re targeting a policy in Encinitas that gives officials the authority to delete emails within 30 days, arguing that it obstructs the ability of regular folks to know what their government is doing.

“It seems to be the norm around here, but it’s wrong,” Tinkov said. “I told them, ‘You guys have been playing with fire for years.’”

Encinitas City Attorney Glenn Sabine and Mayor Catherine Blakespear both declined my requests for interviews.

In a letter to Sabine, Tinkov demanded that officials rewrite their rules to comply with state public records law, or face a separate legal challenge. California requires cities and counties to keep copies of their records for at least two years, but many municipalities argue that the law is murky regarding email retention specifically, and that not all emails count as records.

Encinitas is not alone.

In fact, most North County municipalities destroy their emails before the two-year minimum. Del Mar’s emails are gone after 60 days. Carlsbad, Escondido and Oceanside say goodbye after 90 days and Solana Beach calls it quits after a round 100 days.

Officials in these cities say the state’s two-year minimum on records doesn’t clearly apply to emails and deleting them saves taxpayers on server costs. They also point to a report produced by the League of California Cities, a statewide association for municipalities, arguing that “non-essential” records do not need to be preserved.

The Union-Tribune in 2014 found the Fallbrook Public Utilities District was only keeping emails for nine days. Governments in California have 10 days to respond to records requests — meaning Fallbrook utility officials have effectively shielded themselves from disclosing any communications made by email.

To their credit, Vista and San Marcos have the decency to let emails sit on their servers for the state minimum of two years. Both cities, however, gave themselves the discretion to delete any emails that they view as non-records before the two years conclude.

In other words, the folks who act in the name of the public are the arbiters of what is and isn’t important to the public.

Assemblyman Todd Gloria, a Democrat whose district extends from Imperial Beach to Solana Beach along the coast, introduced a bill in February that would change all that. AB 1184 would make clear that the two-year minimum on records extends to emails. It’s set to be heard Tuesday by the Assembly Judiciary Committee.

Levin Bill Would Speed Up Nuclear Transfer

Rep. Mike Levin announced a new bill that could — someday, one day, maybe — move millions of pounds of nuclear waste out of the San Onofre power station a little faster.

As Union-Tribune explained, roughly 80,000 metric tons of spent fuel are piling up at reactor sites across the country and the U.S. nuclear industry tends to believe in an “oldest fuel first” standard. Instead, Levin wants his colleagues in Congress to establish a new standard that would take into consideration other factors when determining which sites deserve to be atop the queue.

That includes being close to millions of people and earthquake hazards.

If the bill were to pass and the federal government immediately found a place for the waste to go, KPBS reports, Levin would like to see the station closed and cleared of the spent fuel in 10 years.

Discredited Phil Graham Accuser Back in Court

A judge ruled that Nichole Burgan has violated the terms of her probation, the Coast News reports. Another hearing will be held Friday to determine if she’ll go to jail for 90 days rather than the two days she was originally sentenced to serve.

Burgan falsely filed a police report last year accusing a Republican contender for the 76th Assembly District of battery.

It’s a weird story, involving labor-funded Facebook ads, a Mexican telecommunications company and illegal robocalls. I took a deep dive in January.

Stuff I’m Working on

  • When the San Diego approved a smart streetlight program in 2016, officials sold the project as a tool to analyze traffic patterns and climate with data collected in public rights of way. In reality, it’s become a tool for the Police Department, where investigators have been accessing the raw video footage for months, unbeknownst to some members of the City Council. Carlsbad is also working on a proposal to build out its “smart city” infrastructure.
  • The Del Mar Thoroughbred Club, which oversees horseracing at the fairgrounds, is a bigger political spender than one might assume. After we kept noticing their name in campaign finance reports, I counted $1.6 million worth of donations and lobbying expenses over the last two decades. But as attendance at Del Mar declines, so does the group’s political spending.

In Other News

  • State wildlife officials are boosting enforcement of the Carlsbad Highlands Ecological Reserve, where mountain bikers have carved trails into the hillsides. The tug-of-war illustrates the difficulty of managing open space in urban areas. (Union-Tribune)
  • Authorities are offering a $10,000 reward for help figuring out who tried to burn down an Escondido mosque, according to the Coast News. I wrote about the mosque fire and hate crime investigations in the last newsletter. The U-T reports that someone spray-painted a homophobic slur on the home of a gay man in Oceanside.
  • A federal case out of Escondido challenging the concept of “qualified immunity” — a principle giving police officers the benefit of the doubt during use-of-force incidents — is headed back to the U.S. Court of Appeals. (Coast News)
  • Attorney Cory Briggs, a San Diego mayoral candidate, is helping a Palomar College professor sue her employer over public records. That case stems from a new $1 million suite for the college president. (Coast News)
  • The Escondido Union High School board selected a new superintendent behind closed doors and then scheduled a vote without notifying the public or seeking input on the change in leadership. (Union-Tribune)
  • Oceanside voters will decide in March 2020 whether they want the city treasurer and city clerk positions to be elected or appointed. (Coast News)
  • Vista is the latest city to consider the formation of a publicly run energy company. It’s also looking at accessory dwelling units, or granny flats, as a way to ease the statewide housing crisis. (Coast News)
  • And finally, mayors and members of the San Diego County Board of Supervisors gathered in opposition to offshore drilling. The federal government is seeking to significantly expand oil and gas exploration and development along the California coast and elsewhere. (Coast News)

Corrections: An earlier version of this post misidentified Donald McPherson. He is an Encinitas property owner, but not an Encinitas resident.

An earlier version of this post cited an old Poway email retention policy. The city now keeps emails for two years.

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