State’s Public Records Act Hasn’t Caught Up to Smart Phone Revolution

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The authors of the California Public Records Act didn’t mince words when it came to the responsibilities of government officials to operate in a transparent manner.

“Access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state,” the act declares.

But the smart phone revolution and failure of officials statewide to enforce the now 48-year-old law have in some cases made it very difficult for members of the public and news reporters to gain accesses to documents and correspondence about public business.

Like the rest of us, elected officials and lobbyists do much of their communicating via email, voice mail and text messages through their phones.

However, if the elected official uses a private phone, it’s impossible for the public to gain access to those texts or voicemails.

Fortunately for the public, this gaping hole in the law might be closed.

A case pending before the state Supreme Court, the City of San Jose vs. the Superior Court (Smith), that is likely to be heard this year, could put an end to elected officials statewide hiding behind private equipment to keep from disclosing public information. Justices will have the opportunity to rule that even government information kept on private servers must be made public.

And the city of San Diego could lead the way toward further change. Donna Frye, a former San Diego city councilwoman and current president of the board of directors of Californians Aware, is working with city council members on a ballot proposal that, if approved by voters, would make all city business public information including texts, emails and other correspondence on private phones and other personal devices.

Orange County remains behind San Diego in this regard. But it does have one thing going for it that many jurisdictions don’t — an actual written policy on public records.

Such policies are “seldom published,” said open records expert Terry Francke, general counsel of Californians Aware. “This one (Orange County’s) is exceptional in that respect.”

The four-page Orange County policy, among other things, advises all county
elected officials and employees that the county’s Information Technology (IT) department will conduct public records searches for emails involving members of the Board of Supervisors or the staffs and send the information to the office of County Counsel Leon Page.

Information turned up in such searches can be withheld by the county for specific legal reasons, but under state law and the county’s written policy, the county counsel will make the final determination on what has to be released. To read the policy, which was created roughly two years ago and updated in November, 2015, click here.

Another way the Public Records Act is outdated is the time public agencies are allowed to wait before destroying public records. When the law was enacted, all records were kept on paper and government officials complained about the cost for storing them.

Therefore, most records only must be kept from roughly two to five years. After that, they can be shredded, meaning important documents future generations might seek to understand a city or county’s history, also may be lost forever.

Francke notes the cost of storing records electronically has dropped dramatically, but local and state governments haven’t taken advantage of the savings to preserve documents beyond the legal minimums.

The Los Angeles Times reported Monday that former Los Angeles City Councilman Tom LaBonge cleaned all of the records out of his office last year and marked them for destruction.

LaBonge said no one told him the law required many records to be kept. “There were no instructions given to me other than to get out of the office,” he told the newspaper.

Gov. Jerry Brown did something similar in 2007 when he was elected state Attorney General and closed up the office where he had served as mayor of Oakland. He took all of his mayoral records with him.

“I think it’s a fairly widespread practice,” said Francke.

And even if the records are accessible, officials can use technology to keep them from the public. Consider that Anaheim wanted to charge Voice of OC $19,000 to recover public records that a city department illegally destroyed.

Francke said, in general, District Attorneys are reluctant to prosecute public
records violations because, he believes, many plan to run for higher office
themselves and don’t want to leave their own records behind. Or they don’t
want someone else to have access to their records when they retire.

“It’s far better for them not to have any questionable records hanging around in an office they no longer control,” he said.

You can contact Tracy Wood at twood@voiceofoc.org and follow her on Twitter:@TracyVOC.

  • Jacki Livingston

    I got six boxes of internal emails, reports, printouts, status comments, reprimands, complaints, and…best of all…proof of criminal conduct going on. You want some government records? By all means, take a look at mine.

  • Diego Vega

    I was cautiously optimistic about OC government records, until I read that all such records go to Country Counsel Leon Page for a determination. None of these records will ever see the cleansing light if day.