BB&K Webinar May 23, 2018

Public Records Act - Taming the Email Tiger

BB&K Free Webinar

In this webinar, Best Best & Krieger LLP attorney Christine Wood explains how public agencies can create an email retention policy that helps reduce PRA production costs. This webinar covers the basics of a good email retention policy and how this policy can be used to limit the time frame of requests for email communications under the PRA.

When

Wednesday, May 23
10 - 11 a.m. PST

Materials

"Public Records Act: Taming the Email Tiger" [PDF]
To view a recording of the webinar, click here.

“Public Records Act - Taming the Email Tiger,”  generated a lot of questions that could not all be answered during the webinar. Here, Christine tackles those.

1. Can you explain a bit more what that suspension trigger is?
 
A suspension trigger refers to any event that would put an organization on notice that litigation or an investigation is about to commence, thereby causing the organization to suspend its records retention (and destruction) policy to preserve any records relevant to the subject matter of the litigation or investigation.

2. If a city has emails set to automatically delete after 90 days, how does it meet the requirement of retaining correspondence?
 
Government Code section 34090 requires a city to retain records less than 2 years old. A city may determine, as a matter of policy, that emails created or received by the city do not fit the definition of records and thus are not required to be retained unless otherwise required by law. If this policy exists and city employees are trained to identify and remove from their email account any emails that must be retained by law, then email purging after 90 days would be permissible because any email remaining in an email account is not a record such that it must be retained. 
 
3. Is the responsibility shifted in this situation to IT to somehow maintain those deleted emails?
 
An organization email purging procedures will vary depending on its email client. The IT department would oversee the email purging and whether, and for how long, the agency retains deleted emails will vary based on the agency’s archiving and disaster-recovery procedures.

4. What is the definition of a record for the purpose of record retention?
 
Statutes are not very helpful in providing an objective definition of a record. One of the most comprehensive and most recent decisions defining a record is an Attorney General Opinion in which the Attorney General addresses whether the audio tapes of a city council meeting are records that must be retained and disclosed pursuant to a public records request. (See 64 Ops.Cal.Atty.Gen. 317 (1981).) In general, not everything in the possession of  a public agency is a record. A record is something that is required to be kept by law or something that is kept as necessary or convenient to the discharge of an official duty. Please consult your legal counsel for specific advice as to what constitutes a record and how to create a records retention policy that comports with the applicable state and federal laws. (See also Secretary of State Local Government Records Management Guidelines, California Secretary of State Debra Bowen, Archives Division, February 2006),

5. Which laws apply to record destruction for public agencies other than cities? My understanding is local agencies follow the Secretary of State's guidance, which is only suggested and not mandatory.
 
The main laws applicable to records destruction are:

  • Cities – Government Code section 34090 et seq.
  • State agencies – Government Code section 14740 et seq.
  • Special districts – Government Code section 60200 et seq


In the absence of clear records retention regulations for local agencies, the 1999 Legislature added section 12236 to the Government Code, authorizing the Secretary of State to establish the Local Government Records Program. The program is administered by the State Archives, which established guidelines to provide standards and structure to local government records management and retention.  The “Local Government Records Management Guidelines” are not mandatory for any public agency, although special districts may choose to adopt records retention schedules that specifically comply with the guidelines. (See Gov. Code § 60201(b)(2).)  Also, the guidelines have not been updated since 2006, so their usefulness may be limited. We recommend consulting with your legal counsel regarding questions on retention periods for specific documents.

6. Would correspondence from elected officials to constituents through city email system be OK to be subject to a 90-day email purge policy? Are these "business records?"  Does the law require retention of text messages? What about voicemails?
 
The content of the correspondence is more important than whether the correspondence is sent through email. If the content of the email fits the definition of a record it should be retained. If a city institutes a 90-day email purge policy, its elected officials would need to move and store any correspondence that needs to be retained outside of their public email account. There is no specific exception for personal email accounts, text messages, voicemails or other electronic information.

7. If we have a 2-year retention policy on email but our record retention on a certain project is 10 years, does the email policy have to match that or do the users just need to take the burden of saving those emails as part of the project?
 
This depends on your retention policy, but theoretically you could still have a 2-year general retention policy with certain emails maintained for 10 years. For example, the agency could execute this by creating a rule within the email client that allows users to save emails that need to be retained in a certain folder in order to suspend the normal email purging. As another option, the agency could direct employees to proactively save those emails that need to be retained into a file server, eliminating the need to suspend the normal email purging.

8. Please cover the use of Government Code 6253.4 agency regulations or guidelines to implement records retention and CPRA policies.
 
Government Code section 6253.4 states that “Every agency may adopt regulations stating the procedures to be followed when making its records available in accordance with this section” provided that the guidelines are consistent with the other sections of the Public Records Act. Any guidelines adopted pursuant to section 6253.4 would regulate how the agency’s records are disclosed to the public. A records retention policy would govern when and how those records are retained and destroyed by the agency. If the records are retained, they would need to be disclosed pursuant to any applicable section 6253.4 guidelines. If they are destroyed in accordance with the records retention policy, they are no longer available to be disclosed.

9. A local newspaper has requested a list of all people that have been blocked on Facebook by elected officials on their personal accounts. Is this disclosable information?
 
Whether the list is “discoverable” is a different question than whether it is “disclosable” under the Public Records Act. Elected officials are permitted to have personal social media accounts but, depending on use, the social media account could transform from a personal account to a limited public forum. This question reflects a recent court decision regarding the President’s use of Twitter. We have provided a Legal Alert on that decision here: “How a Court’s Decision that the President Can’t Block Twitter Users Impacts Public Officials.” You should consult your attorney for advice on responding to any particular records request. 

10. As long as the agency is consistent, is 6 months considered a reasonable period for email retention?
 
The reasonableness of an email retention policy agency will vary. Consult your attorney for advice on what is reasonable given the type of records being retained. 

11. Can you provide the full reference on the San Jose case please?
 
City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608

12.  What is the statute of limitations on a PRA-related lawsuit?
 
The PRA itself does not state a statute of limitations, and case law has not specified which statute of limitation would apply in the PRA context.
 
13. What are recommended practices for retaining electronic productions in online public records tracking databases (like GovQA) where record productions are posted online for requesters to download in response to their request?
 

An online public records database is one way to start digitizing public records and making them available to the public without the need for the agency to process a public records request. However, those records should be purged from the public records database according to your agency’s records retention schedule to avoid the appearance that you have suspended your policy for these records.

 14.  Are you planning on mentioning the Pasadena case and  CPRA actions?
 
BB&K has done a three-part Legal Alert series on the case. See Part I, Part II and Part III.

15. Can you please share info about the Sedona Conference?
 
The Sedona Conference is a research and educational institute dedicated to the advanced study of law and policy in various areas, including e-Discovery. Their URL is www.thesedonaconference.org.

Additional BB&K Webinars

  • Automated Vehicle Pilot Project Risks and Smart Infrastructure, May 15
  • Preparing for Changes in the “Vested Rights Doctrine” - Understanding Plan Design Options, June 12
  • Do You Know the Way [After] San Jose?, June 26
  • Update on Pension Litigation, July 19
  • Creating an Accessible City, July 24


Click here to learn more.

This webinar is approved for minimum continuing legal education by the State Bar of California in the amount of one (1) hour of General Participatory credit. Best Best & Krieger LLP certifies that this activity conforms to the standards of approved educational activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. Best Best & Krieger LLP is a State Bar of California Approved Provider, #1035. Please note that CLE credit is only available to those who participate in the “live” webinar and Best Best & Krieger LLP is unable to provide credit to those who choose to view the webinar recording.

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