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Tuesday, June 29, 2010 | California cities and counties have destroyed millions of public records over the past decade with almost no oversight. And most of the shredding happens because of policies designed to protect local governments from lawsuits.
Never before has it been so easy to store the history and inner workings of local governments. Computer technology is doing away with the need for paper files and storage rooms.
Nonetheless, cities, counties and other agencies continue to push documents through the shredder, leaving the public with just the broad outlines of how its officials have acted.
“It’s history,” said Terry Francke, Voice of OC’s open government consultant, of the hole in California records. “It’s the memory of what the government has said and done.”
The millions of shredded documents include handwritten notes that help explain why a contract was approved or an outside firm was hired.
Letters, expense accounts, audits, employee grievances, studies and statistics, meeting agendas, press releases, speeches, and government travel records all have headed to the shredder. Even the authorizations to destroy records have been destroyed.
On the state level, some destroyed records have carried the potential of life-and-death consequences.
This year, after the murder of 17-year-old Chelsea King in San Diego, Gov. Arnold Schwarzenegger ordered the state to stop destroying the parole records of convicted sex offenders.
Until the murder, no one outside of corrections department officials knew the department saved such records for just a year after the convict completed parole. King’s killer turned out to be a paroled sex offender.
Not all records can be eliminated. State laws require local agencies to keep records for at least two years and to permanently preserve critical documents like child adoption records, criminal convictions, property title documents, minutes of meetings, ordinances and general court documents.
Fear of Lawsuits
Most of the time, records are shredded in accordance with state guidelines written to protect cities, counties and public agencies from lawsuits.
“A court cannot demand an agency produce documents that have been destroyed in accordance with accepted and documented … industry practices,” the California Secretary of State’s 2006 Local Government Records Management Guidelines reminds local officials.
Government employes who weren’t authorized to speak to a reporter but who worked directly with records and destruction policies spelled it out. “It’s the legal issue. It’s about not having records if you get sued,” explained one worker who spoke on condition that her name not be used.
UC Berkeley law professor Jason Schultz said government lawyers who approve requests to shred are simply doing their job, which is to protect their clients. “City attorneys are hired to protect the liability of cities. … It’s not that it’s ill-willed or bad faith.”
Suzanne J. Piotrowski, Rutgers University records specialist, said it’s unrealistic to ask government agencies to hang onto every scrap of paper.
But, she cautioned, it’s important to ask: “Where’s the safeguard that people aren’t destroying records that they shouldn’t be?”
And overall, “It seems to me there’s an awful lot of history that’s being destroyed,” said Bob Stern, president of the Center for Governmental Studies in Los Angeles.
He noted that 40 years ago, he helped include in state law a requirement that all politicians’ campaign contribution statements have to be kept forever.
“Somebody running for governor right now,” he joked, referring to former Gov. Jerry Brown, “was filing campaign records in 1970.” That was the year Brown was elected California Secretary of State. In 1975, Brown was elected governor.
Today, Stern noted, anyone, including Meg Whitman, Brown’s GOP opponent in this year’s race for governor, can go back and read those old records.
California’s local government records guidelines law, adopted in 1999, acknowledges the need to keep items of historical importance or those useful for scientific and genealogical research and suggests cities contact local historical societies and public libraries for advice.
And cities are required by state law to publicly announce which records are going to be destroyed by putting the issue on city council agendas. But there is no one checking on cities to see if they are following state guidelines regarding what stays and what goes.
Francke, who is also general counsel for Californians Aware, said most often the announcement is wrapped in with many other items on the consent calendar and the vote to destroy records is done without discussion.
“I would not expect that members of the council would methodically comb through those lists” and ask questions, he said. Instead, he said, council members rely on staff. What ultimately is destroyed, he said, “depends on the alertness and energy of the people who make the decisions.”
That alertness varies significantly depending on the city, according to interviews with employees of Orange County cities who asked to remain anonymous in order to protect their jobs.
In one city, an employee said that before a list of records appears on the council agenda, the city clerk checks the guidelines to make sure the boxes of paper qualify. Then the list of records proposed for shredding is sent to the city attorney’s office for approval.
But, she said, staff goes by labels on the boxes and doesn’t inspect the contents of each file to make sure no unauthorized records are destroyed.
However, in another city, a staffer said she and colleagues go through every single piece of paper before files are approved by the clerk and city attorney for shredding.
The Storage Issue
Years ago, the main argument for destroying records was space. Boxes and boxes of paper overwhelmed cities.
However, technology is reaching the point, according to government and industry representatives who deal with record preservation, where it’s possible to create tamper-safe electronic documents that will last indefinitely and eliminate storage as a financial issue.
Most local governments and state officials haven’t decided whether to use new formats to keep records of the daily life of government that now are shredded after a few years, or retain whole files for future historians and researchers.
The secretary of state’s office is developing technology guidelines to be followed by local governments that want to keep electronic versions of records for the long term. The guidelines are intended to ensure documents aren’t altered. Those guidelines could go into effect by next year.
The trustworthiness of digital documents, if the right procedures are followed, is sound, said Betsy Fanning, director of standards and member services for AIIM, the Association for Information and Image Management.
The goal, Fanning said, is to make sure “nobody can tamper with it.”
Even with such advances, cities may be reluctant to keep their records longer than guidelines recommend. The current minimum is two years for records like news releases, four to seven for expense reports and only as long as they are active for city policies and procedures.
One argument against keeping records longer is that it takes staff time to scan paper into a computer. But it also takes staff time to read through files before they are shredded.
“If somebody has the time to shred, they have the time to scan it into a computer,” the Sacramento Bee quoted Assemblyman Ted Lieu, D-Torrance, after the disclosure that parole workers shredded the records of sex offenders.
California Aware’s Francke agrees. Most government records, he noted, are created on computers and don’t need to be scanned. It may be time to start moving the minimum time a record must be kept from the current two years to four or maybe six, or 10 years to keep pace with technology, he said.
And some communities, like Villa Park, are new enough and small enough that they can destroy minor records but keep more of what they see as useful.
Jarad Hillenbrand, assistant city manager and city clerk, said they have records going back to the city’s incorporation in 1962 that they could have shredded under the state guidelines but didn’t.
They did recently shred about 20 boxes of “unimportant” records, he said, including 1978’s reports on weed abatement.
“We have plenty of room (for records) here,” he said.
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