Public Records Files: When in Doubt, Toss 'em Out

OPEN GOVERNMENT — "California cities and
counties have destroyed millions of public records over the past
decade with almost no oversight," reports Tracy Wood for the Voice of OC. "And most of the shredding happens
because of policies designed to protect local governments from
lawsuits."

Never before has it been so easy to store the history and inner
workings of local governments. Computer technology is doing away
with the need for paper files and storage rooms.
Nonetheless, cities, counties and other agencies continue to
push documents through the shredder, leaving the public with just
the broad outlines of how its officials have acted.

"It's history," said Terry Francke, Voice of OC's open
government consultant, of the hole in California records. "It's the
memory of what the government has said and done."

The millions of shredded documents include handwritten notes
that help explain why a contract was approved or an outside firm
was hired.
Letters, expense accounts, audits, employee grievances, studies
and statistics, meeting agendas, press releases, speeches, and
government travel records all have headed to the shredder. Even the
authorizations to destroy records have been destroyed.

On the state level, some destroyed records have carried the
potential of life-and-death consequences.
This year, after the murder of 17-year-old Chelsea King in San
Diego, Gov. Arnold Schwarzenegger ordered the state to stop destroying the parole records of convicted
sex offenders.
Until the murder, no one outside of corrections department
officials knew the department saved such records for just a year
after the convict completed parole. King's killer turned out to be
a paroled sex offender.

Not all records can be eliminated. State laws require local
agencies to keep records for at least two years and to permanently
preserve critical documents like child adoption records, criminal
convictions, property title documents, minutes of meetings,
ordinances and general court documents.

Fear of Lawsuits

Most of the time, records are shredded in accordance with state
guidelines written to protect cities, counties and public agencies
from lawsuits.
"A court cannot demand an agency produce documents that have
been destroyed in accordance with accepted and documented …
industry practices," the California Secretary of State's 2006 Local
Government Records Management Guidelines reminds local
officials.

Government employees who weren't authorized to speak to a
reporter but who worked directly with records and destruction
policies spelled it out. "It's the legal issue. It's about not
having records if you get sued," explained one worker who spoke on
condition that her name not be used.
UC Berkeley law professor Jason Schultz said government lawyers
who approve requests to shred are simply doing their job, which is
to protect their clients. "City attorneys are hired to protect the
liability of cities. … It's not that it's ill-willed or bad
faith."

Suzanne J. Piotrowski, Rutgers University records specialist,
said it's unrealistic to ask government agencies to hang onto every
scrap of paper.
But, she cautioned, it's important to ask: "Where's the
safeguard that people aren't destroying records that they shouldn't
be?"

And overall, "It seems to me there's an awful lot of history
that's being destroyed," said Bob Stern, president of the Center
for Governmental Studies in Los Angeles.
He noted that 40 years ago, he helped include in state law a
requirement that all politicians' campaign contribution statements
have to be kept forever.
"Somebody running for governor right now," he joked, referring
to former Gov. Jerry Brown, "was filing campaign records in 1970."
That was the year Brown was elected California Secretary of State.
In 1975, Brown was elected governor.
Today, Stern noted, anyone, including Meg Whitman, Brown's GOP
opponent in this year's race for governor, can go back and read
those old records.

California's local government records guidelines law, adopted in
1999, acknowledges the need to keep items of historical importance
or those useful for scientific and genealogical research and
suggests cities contact local historical societies and public
libraries for advice.
And cities are required by state law to publicly announce which
records are going to be destroyed by putting the issue on city
council agendas. But there is no one checking on cities to see if
they are following state guidelines regarding what stays and what
goes.

Francke, who is also general counsel for Californians Aware,
said most often the announcement is wrapped in with many other
items on the consent calendar and the vote to destroy records is
done without discussion.
"I would not expect that members of the council would
methodically comb through those lists" and ask questions, he said.
Instead, he said, council members rely on staff. What ultimately is
destroyed, he said, "depends on the alertness and energy of the
people who make the decisions."

That alertness varies significantly depending on the city,
according to interviews with employees of Orange County cities who
asked to remain anonymous in order to protect their jobs.
In one city, an employee said that before a list of records
appears on the council agenda, the city clerk checks the guidelines
to make sure the boxes of paper qualify. Then the list of records
proposed for shredding is sent to the city attorney's office for
approval.
But, she said, staff goes by labels on the boxes and doesn't
inspect the contents of each file to make sure no unauthorized
records are destroyed. However, in another city, a staffer said she and colleagues go
through every single piece of paper before files are approved by
the clerk and city attorney for shredding.

The Storage Issue

Years ago, the main argument for destroying records was space.
Boxes and boxes of paper overwhelmed cities.
However, technology is reaching the point, according to
government and industry representatives who deal with record
preservation, where it's possible to create tamper-safe electronic
documents that will last indefinitely and eliminate storage as a
financial issue.

Most local governments and state officials haven't decided
whether to use new formats to keep records of the daily life of
government that now are shredded after a few years, or retain whole
files for future historians and researchers.
The secretary of state's office is developing technology
guidelines to be followed by local governments that want to keep
electronic versions of records for the long term. The guidelines
are intended to ensure documents aren't altered. Those guidelines
could go into effect by next year.

The trustworthiness of digital documents, if the right
procedures are followed, is sound, said Betsy Fanning, director of
standards and member services for AIIM, the Association for
Information and Image Management.
The goal, Fanning said, is to make sure "nobody can tamper with
it."
Even with such advances, cities may be reluctant to keep their
records longer than guidelines recommend. The current minimum is
two years for records like news releases, four to seven for expense
reports and only as long as they are active for city policies and
procedures.

One argument against keeping records longer is that it takes
staff time to scan paper into a computer. But it also takes staff
time to read through files before they are shredded.
"If somebody has the time to shred, they have the time to scan
it into a computer," the Sacramento Bee quoted Assemblyman Ted
Lieu, D-Torrance, after the disclosure that parole workers shredded
the records of sex offenders.

California Aware's Francke agrees. Most government records, he
noted, are created on computers and don't need to be scanned. It
may be time to start moving the minimum time a record must be kept
from the current two years to four or maybe six, or 10 years to
keep pace with technology, he said.

And some communities, like Villa Park, are new enough and small
enough that they can destroy minor records but keep more of what
they see as useful.
Jarad Hillenbrand, assistant city manager and city clerk, said
they have records going back to the city's incorporation in 1962
that they could have shredded under the state guidelines but
didn't.
They did recently shred about 20 boxes of "unimportant" records,
he said, including 1978's reports on weed abatement.
"We have plenty of room (for records) here," he said.