City Emails: Fleeting Notes or Vital Public Records?

Are city email messages public documents? That depends, apparently, on whom you ask.

The City of San Leandro is studying a new policy that would allow all emails to be automatically purged from the inboxes of city employees every 120 days.

Some city officials say the policy would put San Leandro in sync with other municipalities that have similar rules and would help unclog the city’s computer server.

But open government advocates say such email purging policies violate state law and amount to shredding public documents.

“Virtually every email is a public record,” said Peter Scheer, executive director of the First Amendment Coalition, a San Rafael-based nonprofit group that advocates for free speech and government accountability.

Under state law, cities must retain all public records for two years. The law states that “writings,” including emails, held by state or local government and “relating to the conduct of the public's business” are public records.

Nevertheless, a number of cities have quietly instated policies that systematically clean out city email accounts every few months. These cities, including Newark, Hayward, Alameda and likely dozens of other municipalities, cite their inability to store and manage the flood of emails that flow daily in and out of employee accounts as a reason for the policies.

“We can’t possibly save all the emails in the system,” said Fremont city attorney, Harvey Levin. “The cost would be phenomenal.”

Fremont automatically purges sent and received emails from city accounts every 30 days. Appointments, notes, tasks and messages in “trash” folders are purged every seven days.

The City of Hayward purges email messages received by its employees every 60 days, “whether opened or unopened,” according to its policy.

Until recently, Hayward purged emails after 30 days, but the timeframe was recently doubled “because people were not getting their work done quick enough,” Hayward’s technology service director, Clancy Priest, said. 

In San Leandro, officials say the city’s computer system and its skeleton staff simply can’t handle the current volume of electronic correspondence.

“The city’s email system is being bombarded and overwhelmed with emails,” said Richard Pio Roda, assistant city attorney for San Leandro.

Rayan Fowler, San Leandro’s information services manager, said it can take seven to eight hours to back up the city’s computer server. If the server is backed up during business hours, it slows down the city’s computer system, leaving it vulnerable to crashes, Fowler said. 

“I want to make sure we’re protected from a crash,” she said when asked about the need for a new email purging policy.

Some cities with such policies have sought to skirt the California Public Records Act by declaring emails “transitory” communications or “drafts.”

The Public Records Act, which governs the disclosure and withholding of public information in California, allows government entities to withhold “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business. ”

In the policy proposed by San Leandro city staff, email is considered both “transitory” and a “preliminary draft…not retained in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.”

City Manager Stephen Hollister suggested that emails are like handwritten, desktop memos.

“If I get a message on a pink sheet that says you called, do I need to save that?” he asked rhetorically.

The legal answer to that question is no. But is an email really akin to a Post-it note?

Emails are frequently requested in public records requests from journalists and civic groups. And emails are routinely among the first items requested during the discovery period of a lawsuit, when parties seek evidence to back up their claims.

“An email is an X-ray of what’s really going on at an organization,” said Terry Francke, general counsel for Californians Aware, a Carmichael-based nonprofit that supports journalists and citizens in advocating for open government.

“It provides the closest kind of insight into what’s going on that an organization doesn’t want the public to know about,” he said.

California courts have not ruled specifically on whether or not all emails must be saved as public records. But the City of Alameda could become a test case.

Last year, a developer filed suit against Alameda alleging a breach of contract related to the development of the former naval base on the island. Then, in September of last year, the company filed another suit against the city alleging it had failed to produce emails requested by the company under the Public Records Act, and even destroyed emails, relating to the breach of contract case.

The company alleged in its complaint, among other things, that the city had refused to clarify its email retention policy to the company. The complaint came after a local blogger who had requested city email correspondence on an unrelated issue posted the response she got about the policy from the city’s attorney, Teresa Highsmith.

The blogger, Lauren Do, reported that, according to Highsmith, the city’s internal email system was systematically and automatically purged every 30 days, but that some emails were preserved in hard copy or electronically.

The lawsuit is ongoing, and it’s unclear whether the courts will rule on the issue of preserving emails. 

Californians Aware has also threatened legal action over cities’ email purging policies. Last year, the group threatened to sue the Orange County city of Lake Forest over a proposal to purge all city emails over 90 days old.  As a result, the city put the policy change on hold, according to the Voice of OC, an Orange County investigative journalism nonprofit.

In the employee’s hands

San Leandro’s proposed code states that emails “intended to be retained” as public records should be moved to a user’s Outlook Cabinet or saved and stored outside of the email system either electronically or as a hard copy.

The code leaves it up to employees to decide whether or not emails should be considered public records. Several other cities surveyed by Patch, and some surveyed in November of last year by the Voice of OC, have similar policies.

Open government advocates say this is problematic for two reasons. For one thing, even though the Public Records Act exempts some public records from being disclosed, it’s up the courts, not government officials, to decide which records are exempt, they say.

“You can’t go through piles of government records and shred the ones you think might fall within an exception of the Public Records Act because those are legal decisions,” said Scheer from the First Amendment Coalition.

“The (government) agency is entitled to its view on the matter but it doesn’t have the final say. The courts do,” he said.

What cities can do, say open government advocates, is eliminate messages that are clearly spam.

“It’s a wholesale proposition if it’s about eliminating spam,” said Francke from Californians Aware, of San Leandro’s proposed code change.

The conflict comes with wholesale purging of every message in an employee’s email account, Francke said, most of which, presumably, would relate to government business.

Secondly, many public employees have only a cursory knowledge of the laws governing public records, said Francke.

“From someone who’s been very familiar with the California Public Records Act for 31 years, that law does not lend itself to decisions to either destroy something, or deny public access, that are made by ordinary employees,” Francke said.

Californians Aware has conducted audits and made anonymous visits to public agencies — from school districts to state-level departments — Francke said, “and what we find consistently is that the people who are asked for the records don’t know the California Public Records Act.”

San Leandro City Manager Stephen Hollister said he wasn’t very familiar with the act when Patch interviewed him by phone about the city’s proposed email deletion policy.

Mayor Stephen Cassidy said he received a “general orientation” on the Public Records Act when he took office in January, but the training did not specifically touch on the topic of emails, he said.

Rayan Fowler, the city’s information services manager, said if the policy change goes through, employees would go through a “refresher training” on what is considered a public document, and training on how to use Outlook Cabinet, where employees would be expected to move electronic correspondence intended for preservation.

“Our intent is to preserve public records in an electronic format so that we can respond when we get a Public Records Act request,” Fowler said.

San Leandro's on email retention is a curious hybrid of the email-as-post-it-note and email-as-public-record views. The policy states that email messages "are temporary communications which are non-vital and may be discarded routinely."

However, it says, some emails "may be a more formal record" and should be preserved. The code goes on to give examples of emails that should be saved, including those related to "policy, decision making, connected to specific case files, contract related or otherwise an essential part of a larger record, or other memorandum of significant public business."

The code says department heads are responsible for overseeing the policy on retention of email records in their department. 

For now, citizen concern has slowed down San Leandro’s proposed email deletion policy. The code change was scheduled for a vote by City Council in the near future, but after receiving complaints from residents, Cassidy said, he requested the policy go back to the Rules Committee for further discussion.

“We need to step back and deliberate this further and weigh the pros and cons,” Cassidy said last week.

The other two council members on the Rules Committee, Jim Prola, who said he was opposed to the new policy from the start, and Ursula Reed, agreed to revisit the potential code change. The Rules Committee meets next on April 26.