Consider the email: In many situations, it has replaced the memo, the letter, even the phone conversation. That’s why it is critically important for governments at every level to retain email correspondence, just as they would preserve letters and other more traditional written communications.
Yet government policies on retaining emails are inconsistent and in some cases, nonexistent. As Tribune writer Tonya Strickland reported Sunday, some local agencies lack formal policies, and those that do have them sometimes leave it to employees to determine whether an email is to be considered city business and retained.
As a result, emails that could shed light on controversial issues are sometimes not available.
For example, when The Tribune requested emails relating to the skyrocketing road improvement estimates for the proposed Wal-Mart and Annex projects — Strickland requested emails between the city and the developers and between various departments within the city — it was discovered that only a handful of emails existed.
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As it turns out, Atascadero is among the agencies that give employees discretion to determine whether an email is an official record of city business. If an employee determines that it’s not a city record, then according to Atascadero’s policy, emails should be deleted within 90 days, rather than kept for the two years for which most government records are retained.
That’s not acceptable, but it’s not a surprise, given the confusion over what state law requires. Consider this passage from a legal opinion presented at a 2013 League of California Cities conference for city attorneys:
“There appears to be no statute that expressly requires keeping all local agency emails, although depending on their contents, some emails may be subject to special records destruction or retention statutes requiring keeping them for a specified time. Therefore, at least some and perhaps most emails relating to the conduct of the public’s business and that are prepared, owned, used or retained by local agencies may be subject to destruction at any time, unless they are made or retained for the purpose of preserving their informational content for future reference, or are subject to special records retention requirements.”
That same opinion also notes that some open-government advocates are prepared to challenge policies that allow destruction of emails that are less than two years old.
“Consequently, agencies that adopt policies permitting destruction of agency emails that are less than 2 years and that are not otherwise required to be retained by law may face legal challenge, despite the legal support for the lawfulness of such policies,” the opinion states.
Peter Scheer, executive director of the nonprofit First Amendment Coalition, gives much more straightforward advice for those in the public sector. “It’s OK to delete emails about scheduling your daughter’s dentist appointment,” he said. “But anything else — don’t try to figure that in. Don’t try to risk making mistakes. Just save it all.”
That makes sense, though frankly we believe it would be even simpler to save everything — period.
Deleting emails that contain important public information will not only anger advocates of public transparency — including the media, concerned citizens, taxpayer groups and many, many more — it could also leave governments on the hook for substantial damages if emails relating to litigation are wrongfully destroyed.
We strongly urge every government agency in San Luis Obispo County, including cities, school districts, community services districts, etc., to revise or develop policies to ensure all emails even remotely connected to government business are retained for a minimum of two years.
We also urge the state Legislature to update laws dealing with the retention of public records to better ensure that all governments in California are on the same page regarding emails.