By Anne Lowe

Californians Aware General Counsel Terry Francke has a message for the city of Lake Forest: Don’t execute a plan to destroy e-mails or you will be sued.

An article in Voice of OC recently detailed the policies of cities in Orange County for the destruction of e-mails. Among those cities was Lake Forest, which had recently drafted a proposal to destroy city e-mails every 90 days. Lake Forest has since held off on those plans until they can more carefully consider the proposal’s implications.

Francke's comment on the issue more recently in Voice of OC:

Anyone in business in any organization knows how central email communication is to planning, executing and reviewing operations. Email is the informational connective tissue that fills the spaces between formal meetings and documents and, if disclosed, allows scrutiny between the lines of official policy.

To get a candid, unvarnished picture of how our wars are being waged at the ground level, you don't go to Pentagon press releases; you look at Wikileaks dumps (or reports that translate them). On a more conventional scale, email is one of the first targets for public records access requests by journalists and other watchdogs, discovery demands in litigation, and subpoenas or search warrants in criminal prosecutions.

But a government record that has been destroyed, erased or discarded is beyond the reach of public access under the California Public Records Act or any other transparency law. Our state has two legal approaches to preventing or at least discouraging the purging of government records at will. One is the criminalization of such activity. The other is its regulation through records-management policies and laws.

On the criminal side, Government Code Section 6200 states:

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.

For non-officers guilty of the same acts, Section 6201 sets the penalty at up to a year's term in prison or jail, or by a maximum $1,000 fine, or both. In Loder v. Municipal Court, 17 Cal.3d 859 (1976) the court concluded that "inasmuch as no showing of specific intent is required by the statute, an officer who knowingly removes or destroys such a document is punishable even though he acts without a criminal purpose."

And it is no defense to a prosecution under this law to say that the records were exempt from disclosure under the Public Records Act and therefore not "public" in the first place. In the leading case under Section 6200, People v. Pearson, 111 Cal.App.2d 9 (1952) a police captain was convicted for removing vice squad investigative records from station files (apparently to show them to raid targets).

The court observed, "A paper written by a public official in the performance of his duties or in recording the efforts of himself and those under his command or written plans of future work is a public record and is properly in the keeping of the office."

Nor is Section 6200 confined to protecting legally mandated records. In People v. Sperl, 54 Cal. App. 3d 640 (1976), the court again emphasized that the offense can occur with respect to records not required by law to be created or maintained. The defendant, the Los Angeles County Marshal, was convicted among other things of an offense under Section 6200 in connection with the unauthorized removal from archives of nearly 300 car radio logs documenting the use of official vehicles for certain trips.

The court of appeal stated:

Defendant's principal argument on count VII is that the maintenance of radio logs is not required by an ordinance or statute, therefore, because the marshal has control of all records of his office, he had the authority to do with the records as he saw fit. This argument is meritless. A public official has no right to treat official government records of an office, such as the marshal's department, as his own…As stated in People v. Shaw … and the authorities cited therein, "In order that an entry or record of the official acts of a public officer shall be a public record, it is not necessary that such record be expressly required by law to be kept, but it is sufficient if it be necessary or convenient to the discharge of his official duty…"

But prosecutions under Section 6200 are almost unheard of. Governor-elect Jerry Brown, upon leaving his office as mayor of Oakland to become attorney general, for example, reportedly destroyed or took with him an unknown quantity of the files accumulated over his eight years in city hall, and such practices may be more common than we realize, despite the Sperl court's caution that a "public official has no right to treat official government records of an office … as his own."

It may be that district attorneys routinely destroy their own records and are reluctant to call such behavior criminal (despite the court's conclusion in Loder) unless it is evidence of corruption as in Pearson or at least an abuse of public funds or resources as in Sperl.

As for non-criminal controls against the destruction of email messages and other government documentation, California law has no universal requirement for the preservation of public records. There are instead differing records management laws and policies for the legislative, judicial and executive branches, and within the latter, for state and local agencies.

The Legislature's self-imposed law focuses on records concerning particular bills—there's no law or house rule governing destruction of administrative records of the Assembly or Senate. Similarly, the judicial branch rules on preservation of records deal with case files, not housekeeping records of the trial or appellate courts or the branch's administrative office in San Francisco.

As for the executive branch, the Director of the Department of General Services (DGS) is required to establish and administer the state's records management program. The program applies "… to the creation, utilization, maintenance, retention, preservation, and disposal of state records." Every state agency is required to establish records retention schedules that, when approved, become the legal authority for the agency to dispose of official public records. State agencies must revise and update their schedules every five years or whenever a change occurs that affects the keeping or disposing of agency records.

But since these laws and regulations do not reach local government agencies, counties, school districts and special districts, we have no standardized program of accountability for their treatment of public records or standard retention periods for most record categories. To address this situation, the 1999 Legislature added Section 12236 to the Government Code, directing the Secretary of State to establish a local government records program to be administered by the State Archives to, among other things, create guidelines for local government retention.

But cities are governed by more than guidelines. They are the only local agencies given specific statutory authorization for records destruction in an orderly and public manner, with the limit that such destruction is not permitted for "records less than two years old" (Government Code Section 34090 (d)).

This law makes no exception for emails and contains no definition of "public record" that could be used to exclude them from the two-year rule. Email is however expressly included in the Public Records Act definition of the kind of "writing" that, when concerning government business, is presumed to be accessible to the public.

Some cities engaged in wholesale periodic purging of email argue that Section 34090 does not apply to email because of their "transitory" nature. There is no legal authority for this self-fulfilling distinction. Other cities say that email messages may be destroyed because they are not "public" but instead "drafts" exempt from disclosure under the Public Records Act. This argument not only is unsupported by law but contradicts it.

Californians Aware is on the record as cautioning the city of Lake Forest that it will sue to stop execution of a proposed policy authorizing the routine destruction of most email every 90 days. That city has put such plans on hold until they can be more carefully considered. One way or the other, CalAware is committed to going to court if necessary to halt the wholesale destruction of such key city records.