In SLO County, policies for public records on private devices go from strict to nonexistent
How public records are handled on private devices at local governments in San Luis Obispo County ranges from strict rules with detailed expectations to laissez-faire advice that amounts to virtually no policy at all, a Tribune analysis found.
The Tribune investigated the question as it remains locked in a three-party legal battle among the newspaper, the city of Paso Robles and Councilman Chris Bausch over texts and emails Bausch has withheld for more than six months despite 19 Public Records Act requests.
After receiving only a single record in response, The Tribune sued the city and Bausch in March, citing violations of state law. The filing has since triggered a series of cross-complaints from both defendants.
Beyond the courtroom, The Tribune’s case — and others like it happening elsewhere in the state and nation — shines a spotlight on an oft-overlooked responsibility of local governments, to determine whether they have policies outlining best practices for documenting public communication on personal devices, and if those practices are, in fact, being followed.
California law is clear on this in a case that was upheld by the state Supreme Court in 2017.
The case, City of San Jose v. Superior Court, determined that records relating to public business should be disclosed under the California Public Records Act, even when those records are stored on an official’s private device.
This issue is not unique to San Luis Obispo County. The Los Angeles Times filed a lawsuit in March against Mayor Karen Bass for her deleted text messages during Los Angeles’ deadly wildfires in January, and in San Francisco, former Mayor London Breed and current Mayor Daniel Lurie have both made headlines for deleting and/or concealing texts about public business, according to the San Francisco Standard.
“In all fairness to Mr. Bausch, he’s not the only one doing this, but that doesn’t make it right,” The Tribune’s attorney Karl Olson said during a March Q&A about The Tribune’s lawsuit. “There’s a constitutional right of access to communications dealing with public business.”
Stockton and San Jose have also faced similar issues with private device use among its elected officials.
In the wake of the Paso Robles case, it begs the question: Do local governments in SLO County have policies mandating how public records are preserved on private devices and do they ensure their staff and elected officials are fully informed on how to follow California law?
In Bausch’s case, Paso Robles argues the councilman was well-trained in public records policy and was advised not to use his personal phone for public business.
Still, he’s found himself embroiled in a courtroom battle that will likely rack up a significant legal bill — one that taxpayers could wind up paying.
As part of its Reality Check series, The Tribune investigated how each city in San Luis Obispo County and the county itself maintains its public records, and what their procedures are to help officials comply with the law and avoid costly legal battles.
What it discovered was that policies vary widely from city to city, with some like the city of San Luis Obispo laying out strict guidelines and others like Pismo Beach having no policy at all.
Paso Robles policy
Paso Robles encourages councilmembers to use their city emails and accounts “to the greatest extent practicable,” according to its Council Policies and Procedures Handbook.
The city specifically provides councilmembers with direct access to city telephone and computer systems, as well as a cell phone, for officials to conduct city business on city devices and accounts as needed.
But Paso Robles does not appear to have a policy for all city employees in its municipal code or other policy manuals.
According to the city’s lawsuit against Bausch, the city provides extensive training on California open government and transparency laws to city councilmembers — including obligations under the Public Records Act — and also routinely reminds councilmembers that they should be using their public accounts and devices for city business.
It is unclear from the policy manual how records made on private devices should be retained or for how long. It also doesn’t state a clear procedure on how councilmembers should look for records made on their personal devices or accounts.
Mary Sponhalz, deputy city clerk for Paso Robles, told The Tribune in a December email that when the city receives a request for public records store on a city official’s or employee’s personal device, the request is forwarded to them with a request to submit items to the city clerk, deputy city clerk or custodian of records for review and release within 10 days.
“Less technologically savvy” employees or officials can also bring their devices to the clerk directly, she said.
“We rely on the individual to disclose if they have or may have responsive records,” she added.
What Atascadero’s policy requires
In Atascadero, the city’s policy for councilmembers requires them to use city email accounts.
If a councilmember receives an email pertaining to public business on a private account, they’re encouraged to forward the email to their city account and/or ask the sender to email their city account, according to the Atascadero City Council Handbook.
The handbook requires councilmembers who want to maintain a public social media presence to meet with city officials to discuss it.
It also encourages councilmembers to “think carefully” before sending or responding to emails.
“Never reply when angry or in a bad mood,” the handbook states. “Do not make derogatory personal comments.”
As for other officials, Atascadero fire and police are permitted to use their personal devices on duty only “in exigent circumstances” or as otherwise authorized, according to the city’s police and fire department policies. The policies list using a personal phone when radio communications are unavailable as an acceptable caveat.
Using a personal cell phone for work reduces the expectation of privacy on that device, the policies state. City agencies can examine these devices for records relating to litigation, public records requests, investigations and other circumstances that may arise, according to the city.
The policy also states that public records stored on an employee’s personal device should be sent to their work device and deleted from the other by the end of the employee’s shift.
In addition to these policies, city spokesperson Terrie Banish told The Tribune that the city reviews and updates its public records policies as needed to comply with the law.
“When a request for records is received, the City requires its staff to examine their personal devices for responsive records, and if there are any, the City requires staff to sign a declaration attesting to the search for such records,” Banish wrote to The Tribune in an email.
SLO’s policy is strongest in the county
The city of San Luis Obispo appears to have the most robust policies in place when it comes to private devices and records retention.
City spokesperson Whitney Szentesi told The Tribune that the city consistently advises its employees and officials of its obligations to search personal devices if they possess records responsive to Public Records Act requests and requires staff to search their private devices and accounts, including text messages and social media, when responding to records requests.
According to the City Council policy manual, the city advises that any communications regarding city business on private accounts or devices, including social media, can be subject to disclosure under the Public Records Act, and are also subject to the Brown Act and the city’s records retention regulations.
The city’s records retention policy also is very clear on the use of personal email.
“No city employee shall use their personal email account(s) to send emails relating to or containing city business,” it reads. “If an employee inadvertently transmits an email or receives an email that relates to or contains city business outside of the city email server, that employee shall immediately transmit an unaltered copy of the message(s) to their city email account to be retained.”
The city retains emails for a minimum of two years, the policy said.
The policy also discourages city employees from using texts to conduct official city business. If an employee of elected official does conduct business through text, they are responsible for ensuring the communications are retained and archived, the policy said.
Copy records to a city device, Morro Bay says
In Morro Bay, officials are encouraged to use city email accounts and devices exclusively, according to the city’s policy handbook for City Council and advisory bodies.
“Limited use of a private device for public business is permissible but not encouraged, and public records on such devices are subject to the Public Records Act,” the handbook reads.
If an official receives a communication about public business on their personal device or email, Morro Bay’s policy encourages them to either copy or forward any public records created to their city device.
“That practice facilitates efficient and prompt responses to Public Record Act requests,” the handbook reads.
The policy is clear that public records created or stored on a personal device or email account are still subject to public records requests.
No citywide policies in Pismo Beach and Grover Beach
Pismo Beach does not have a specific policy regarding the use of private devices by city employees and officials, Pismo Beach Assistant City Manager Mike James told The Tribune.
“The city follows best management practices to ensure all emails and application usage go through the city servers so city records are properly retained,” James added.
Grover Beach also does not have a citywide policy for the use of personal devices, Grover Beach Assistant City Manager Kristin Eriksson said, because only Police Department Staff and Public Works maintenance staff are provided with “city handheld devices.”
According to the Grover Beach Police Department manual, police employees should not use personal accounts or devices to communicate about the official business of the department. It also states employees do not have a right to privacy when using their department email.
Police Department employees also should only use technology provided by the department while on duty or in conjunction with assignments, which also applies to personally owned devices used to access department resources.
Arroyo Grande policy only for councilmembers
Arroyo Grande also has no standalone written policy regarding the use of private devices by city employees, Arroyo Grande City Clerk Jessica Matson said, but it does have one for its councilmembers.
The City Council Handbook advises that all communications regarding city business to and from councilmembers are potentially subject to disclosure under the Public Records Act regardless of how they are sent, received or stored. It asks councilmembers to “minimize potential risk, embarrassment or awkward situations” and to conduct all city business on city devices and accounts to the greatest extent possible to ensure the city has a record of the communications.
It also advises members to use “tact and caution” when communicating in writing about the city’s business regardless of the medium or recipient, adding that exceptions for disclosure of communications about the city’s business are narrow.
“As always, a good rule of thumb before hitting ‘send’ is to consider how you would feel if the communication were to be reprinted in the newspaper,” the handbook said.
Matson added that the city clerk’s office ensures all appropriate measures are taken to verify that city records are collected from all devices, including personal devices, in response to Public Records Act requests and ensures all city employees and officials are aware of their obligations to search their personal devices if they possess records responsive to records requests.
How SLO County manages private devices
For San Luis Obispo County, employees are not prohibited from using their personal devices for public duties, according to county spokesperson Jeanette Trompeter. However, officials are encouraged to use government devices.
According to Trompeter, restrictions are in place that prevent county documents from being downloaded or distributed on personal devices.
But the policy Trompeter sent to The Tribune mostly outlined rules around personal cell phone use and stipends, rather than guidelines for records retention.
Trompeter said the county regularly advises board members about their obligations under the Public Records Act, including for records stored on personal devices. County counsel has discouraged board members from using personal devices for public business, she said.
“Employees are responsible for ensuring proper retention and disclosure of documents on personal devices,” Trompeter wrote in an email to The Tribune.
Where can cities improve?
Paso Robles isn’t the only city in hot water over potential public records concerns.
Recently, Los Angeles Mayor Karen Bass came under fire for having her texts set to auto-delete, preventing reporters from learning about her communications in the aftermath of the fires that devastated the region, the Los Angeles Times reported.
The Times then launched a lawsuit against the city over the deleted texts, it reported in late March.
A city councilman in Spokane Valley, Washington, is also facing similar challenges to Bausch after he refused to turn over records relating to his social media use, the Inlander reported. The Spokane Valley City Council voted in February to allow the city manager to take legal action against the councilman, according to the article.
These instances, as well as the case in Paso Robles, should inspire local cities to evaluate their own public records policies, said Karl Olson, an attorney for The Tribune.
Olson helped litigate the landmark San Jose case that officially established that public records stored on private devices are subject to disclosure under the California Public Records Act.
Olson said every city should have a written policy that clearly outlines public records law, including the precedent set forth in the San Jose case.
Olson added policies “encouraging” officials to use or copy their government phones are different than policies “requiring” them to — which the San Jose case determined cities can do, Olson said.
“I would definitely encourage cities to follow guidance from the California Supreme Court,” he said. “I mean, if they don’t do that, they’re asking for the same kind of problems that have occurred in Paso Robles.”
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