An Anaheim official sent an email this week to employees in the city's Planning Department ordering them to purge records deemed "old" or "unnecessary" and threatening "disciplinary action" if they did not do so.
The email was sent Wednesday by Hannah Jones, a Planning Department staffer, after Voice of OC filed a request under the California Public Records Act for records of communications to and from members of the City Council.
Open-government advocates are alarmed by the order. The union representing Anaheim's employees has instructed their members not to follow the order until the district attorney makes a determination on its legality.
Here is the opening paragraph of Jones' email, quoted verbatim:
The city has been getting daily public records requests, and on several occasions, old unnecessary or inappropriate documents have been found in City files. We have been fortunate in that we have not had old or unnecessary documents turn up as a result of these requests. When these documents do turn up, it can very easy portray the actions of city staff, applications, contractors and decision makers out of context and damage our credibility. Because of the increased scrutiny of these records, division managers or supervisors, from time to time, will be reviewing your records, both hard copy and electronic. If old unnecessary document are found on computers or in offices/work areas, then disciplinary action will be taken.
The order came at the end of a year in which several high-level Anaheim officials, including City Manager Thomas Wood, resigned in the wake of conflict-of-interest revelations in the city's Building Division. And earlier this month, a Voice of OC public records request revealed an email chain that shows Councilwoman Kris Murray pressuring city staff on behalf of her private employer.
Peter Scheer, executive director of the California First Amendment Coalition, said the order is problematic on a number of levels.
"This memo that I saw is a very sloppy, highly ambiguous, completely confusing document that no employee could follow confidently, and it could be read as authorizing the deletion of things that shouldn't be deleted," Scheer said.
Terry Francke, general counsel for Californians Aware and open-government consultant for Voice of OC, goes further, saying Jones is asking employees to commit a criminal offense that can be a misdemeanor or in some cases a felony.
Francke said Jones' email is especially egregious because it asks city employees to destroy records that have been requested by Voice of OC.
"I'll put it like this: If it were the DA's office that made the [public records] request you made, and if that were followed by the kind of request [destruction of records] you're talking about there, I'm sure there would be a criminal investigation," Francke said.
According to state law, a city's records may be destroyed only after two years, and the destruction must be authorized publicly by the city council, Francke said.
"This kind of decision to carefully review records that are on hand and purge those that are deemed to be 'inappropriate' — that decision is to be made after two years," he said. "It's not simply a periodic housecleaning on the authority of or by the direction of staff."
Scheer agreed with Francke but was less emphatic.
"If they [city officials] deleted documents covered by your [public records] request that are substantive emails that dealt with city business, that's problematic," Scheer said. "It's particularly problematic if it's in response to your request."
City Clerk Linda Andal said she interpreted the email as a reminder to employees to manage city records according to the rules of the department's records retention policy. She pointed to specific guidelines in which Jones outlines which records should be destroyed and which should be saved.
Records that Jones said should be kept include: "correspondence from the public regarding projects in the city, enforcement and compliance activities, permitting activities and policy and budget development."
Records that should be purged include: "emails and correspondence that simply confirm meeting dates, confirm shipping or receipt of information, or arranges meeting times."
The email is simply "restating our city's policy on record keeping, purging emails and identifying a record," Andal said. She said the email was not sent in response to Voice of OC's request for records.
Councilwoman Lorri Galloway acknowledged that council members usually publicly authorize the destruction of records and said she was puzzled by the email.
"Any destruction of records that I am aware of, we at council have to approve of every two years," Galloway said. "It certainly piques my curiosity. I'm going to follow up and see what they want to accomplish with it."
Other city officials, including Jones, Mayor Tom Tait and interim City Manager Bob Wingenroth, could not be reached for comment Friday.
After seeing the email, officials with the Orange County Employees Association, which represents Anaheim employees, sent their own email telling city employees not to destroy any records until the district attorney's office determines whether the request is illegal.
"Essentially what the directive could be doing is asking our members to violate state laws, so we need to make sure they are protected," said OCEA spokeswoman Jennifer Muir.
Scheer said that only in rare instances may an employee legally purge records. "An example of that is a government employee using his personal email to confirm his dentists' appointment."
There are several references in Jones' email that Scheer says "raise a red flag."
"The irony is that she clearly wants to have purged records that might embarrass or reflect poorly on public officials," Scheer said. "And as everyone should know, embarrassment to public officials is never a legitimate basis for denying the public information."
Earlier this month, Voice of OC obtained through the Public Records Act an email chain showing that Murray had pressured city officials to approve a permit for a barbeque held by her employer, Willdan Group.
Local government experts across the country called the communications in the email chain a violation of the city's council-manager form of government and could be considered a criminal offense.