Email policies limit the public's ability to monitor local governments

Last fall, Atascadero residents learned that a deal between the city, Wal-Mart and another developer could cost taxpayers millions of dollars more than previously estimated.

The deal struck in 2012 to share costs for road improvements was based on estimates, not actual numbers, so, two years later, the negotiated caps on what the developers would pay made it clear that the price tag to the city had skyrocketed.

Anyone wanting to track the conversations that took shape around those negotiations, however, would have a tough time getting some of that information.

That’s because city officials said most emails between the city and the developers had been deleted.

The occurrence highlights the significance of the city’s policy on emails, which says, among other rules, that emails not deemed a public record, such as “correspondence not relating to city business,” should be deleted within 90 days.

The policy leaves it up to each city employee’s discretion to determine what is “city business.”

Atascadero is not alone in this practice. Many government agencies — including others in San Luis Obispo County — operate under similar guidelines.

The resulting policies make the public's ability to monitor government actions troublesome, experts say.

Among the varying public records policies that local governments use for emails, one notion that experts say is particularly outdated — yet still widely practiced — is the idea that some emails aren’t considered public records because they’re simply routine exchanges or judged as vehicles to transmit public records as attachments.

“Email is no longer a means to schedule an opportunity to communicate — it is the communication,” said Peter Scheer, executive director of the nonprofit First Amendment Coalition based in San Rafael, Calif.

“Routine correspondence, as I think everyone who engages in it knows, has substance. From Person A to Person B, the email is a record of who saw it, who received it and when it was sent — it can all be important and relevant to anyone.”

In fact, San Luis Obispo County taxpayers could benefit from stronger email policies among local government agencies, he said.

Among the four San Luis Obispo County cities that do have policies for retaining email — Arroyo Grande, Atascadero, Grover Beach and San Luis Obispo — general language dictates which emails to delete and keep, and places the decision-making power in the hands of city employees.

Such a policy “guarantees immeasurable public records will be misjudged as not having public records status, and will be deleted improperly,” Scheer said.

In Atascadero, city policy makes it each employee’s responsibility to either delete or print out and save their emails.

Last fall, The Tribune requested emails between the city and the shopping center developers, or between city departments about the shopping centers, and found that very few emails were actually retained. Only a handful of emails were kept — printed out and intermixed in tall stacks of more traditional public records such as maps, formal letters and planning documents.

The Tribune sought the emails to provide a chronological narrative on how those cost-sharing negotiations came to be, and the conversations that took shape around them such as whether the city and developers had set up meetings, summarized phone conversations or simply made chit-chat in their emails.

It’s unclear whether each city employee would have considered those types of emails as city business, or if such messages were labeled routine communications and deleted.

City and state policies

Atascadero’s email usage and retention policy was developed by former city manager Wade McKinney in 1998 and revised in 2006.

The rules say employees have the same responsibilities for email messages as they do for any other public record and must distinguish between records and non records, and then print and file the emails deemed official records.

The policy breaks down emails by the types of emails to keep, generally saying emails not deemed as public records should be deleted within 90 days.

Meanwhile, the emails that are considered public records are printed and stored as a hard copy, and kept at least two years.

That’s in line with the state’s standards, which also advises local government to keep official records for at least two years, or until the record is no longer required.

However, the wording of “no longer required” opens the law up for interpretation.

“That’s where it gets muddy,” said Leila Knox, an associate serving with the First Amendment Coalition’s general counsel. “It seems to be that city and counties have taken that term ‘if no longer required’ and placed a lot of discretion on what that means and how they’re going to apply that to things like email.”

Atascadero’s 90-day deletion timeframe for supposed non-records is similar to other local cities that also have email retention policies. In Grover Beach, deleted messages will be wiped after 30 days while Arroyo Grande’s system is set up to automatically delete messages after 180 days.

San Luis Obispo is a little bit different, where once a staffer’s email mailbox limit is reached, employees can't send out messages and have to reduce emails in order to send new mail; and all deleted files will be erased from the "deleted items" folder after 30 days.

Paso Robles’ policy doesn’t give a time frame for deleted emails.

Some policies, such as Arroyo Grande’s, indicate that email should be deleted as to not overload the storage capacity of municipal systems.

That concept is archaic, Sheer said, and, in his legal opinion, isn’t a reason for deleting records in the modern age.

A vehicle or a message?

Atascadero’s policy’s guidelines go on to say that “e-mail itself is not a considered a record series or category; it is a means of transmission of messages or information.”

Interpreting the city’s policy to view email as a vehicle to deliver public records has been a common practice for Warren Frace, Atascadero’s community development director.

In the case of the Wal-Mart email request, Frace said he deleted all his “routine correspondence” email over the years.

“If we get an email with, say, a letter attached to it, we would print out the letter for the file and delete the email,” he said. “… The correspondence and routine communication isn’t a record.”

Frace also said that many of the Wal-Mart discussions took place by phone.

That interpretation of public records law troubles one resident, who requested records from the county last year and says email and phone discussions go hand-in-hand.

“With email, that’s your acknowledgment of receipt,” said Mike Byrd, a real estate agent in Arroyo Grande who ran for county supervisor last year. “In my business, I like to send an email after a phone conversation because it makes a record of it. I might say ‘Per our conversation today, here’s my understanding of what was said.’ And then write a recap. “If (government) is deleting those kinds of emails, there would just be a lot missing I would think.”

Atascadero City Clerk Marcia Torgerson said she prints out and files emails that she thinks pertain to city business, such as an email from the county clerk-recorder on whether the city’s candidates are registered to vote during election time. But other emails, such as setting up lunches with the media, for example, are deleted.

Atascadero’s rules — along with others in the county — fall in line with general guidelines from the state on public record-keeping, which loosely refer to email among the types of public records.

However, Scheer said if local government employees delete any emails that contain any reference to government operations, then they are deleting those files illegally.

Defining public records

Local governments develop their policies off the state government code, which is interpreted by the secretary of state and then made available to local governments.

While state government code requires most types of public records to be maintained for at least two years, it also gives a lot of leeway to local governments to develop their own policies, saying records “must be maintained for the period specified by a local records retention policy and can be destroyed only with the approvals required by that policy.”

It’s unclear if the word “email” is explicitly stated in all of the state’s guidelines, but the state’s Public Records Act does say that it applies to all government records.

The act defines a public record as “any writing containing information relating to the conduct of the public’s business,” and then goes on to say that “writing” was left as a broad term but can include “any handwriting, typewriting, printing … photographing, photocopying, transmitting by electronic mail or facsimile” and similar mediums.

From the court’s perspective, email is widely accepted as being a public record, Sheer said.

“Numerous courts have assumed that government emails are public records. No court has directly addressed the issue, presumably because it is beyond debate,” he added.

In Paso Robles, city officials say they have an outdated policy so they base their email-keeping practices directly from the state government code.

Some local governments without email retention policies say it’s on their to-do list.

County Counsel Rita Neal says county government offices are in the process of reviewing document retention schedules, which will include an analysis of retention of e-mails.

Meanwhile, newly elected Arroyo Grande Mayor Jim Hill said his city’s policy, which he had not seen previously, gives him cause for concern “for record retention requirements with respect to public records,” he said.

“I will be discussing with city staff and probably recommending council provide direction,” he said.

A good approach in developing or updating a modern-day policy, Scheer said, is to take the “completely opposite course and don’t delete anything about government business. It’s OK to delete emails about scheduling your daughter’s dentist appointment. But anything else – don’t try to figure that in. Don’t try to risk making mistakes. Just save it all.”

This story was originally published January 24, 2015 at 9:05 PM with the headline "Email policies limit the public's ability to monitor local governments."