The Anaheim Planning Department’s records retention policy violates state law by asking employees to purge certain city records before they are old enough to be legally destroyed, Voice of OC’s open-government consultant, Terry Francke, said Wednesday.

According to city documents specifying the department’s retention policy, “draft” records must be “destroyed immediately.” The policy’s definition of a draft is vague, but includes “office memos, minutes, internal.”

The instruction to destroy draft records is confusing and could be interpreted as a directive to purge a broad swath of records, Francke said. It asks employees to break state law, he said, because the law calls for the preservation of city records — without exception — for at least two years.

“What the city is doing is administratively opting out of compliance with state law,” said Francke, who is general counsel for the First Amendment advocacy group Californians Aware.

The Anaheim Planning Department’s records retention policy has come under the examination since an official sent an email last week ordering employees to destroy “unnecessary” records or face “disciplinary action.” 

First Amendment experts were alarmed by the email, saying its ambiguous language — including allusions to records that could “damage our credibility” — suggests that employees destroy records that under state law must be retained.

City officials argued that the email simply restated the city’s records policy. The email outlines records to be kept, like “correspondence from the public regarding projects in the city,” and records to be destroyed, such as “emails and correspondence that simply confirm meeting dates.”

A review of the department’s records retention schedule found no reference to emails and correspondence about meetings.

In another example of the schedule’s confusing language, records under the “correspondence” category are to be saved for at least two years in addition to the current year. Yet “office memos,” a form of correspondence, are separately marked as “destroy immediately.”

A memo sent Wednesday afternoon to department employees attempted to clear up the confusion. The memo directs employees to produce all records in response to California Public Records Act requests, including records that would otherwise be destroyed.

The memo acknowledges that records can only be destroyed with City Council approval but states that state law “can be confusing” when it comes to identifying records. “One of the critical factors is whether the record is kept (i.e., preserved) by a public officer,” the memo reads.

Francke says the state statues are clear, and he points to state code to back up his reasoning. Government code section 34090 specifically bars “records less than two years old” from destruction. Emails, like those arranging meeting times, are not exempt, Francke said.

Only personal or “blast” emails – like “there are doughnuts in the break room” – are exempt from the law, experts have said.

“It’s not a terribly complicated matter,” Francke said. “There’s one law that says cities are supposed to keep all records for two years. Then there’s another law that says that alteration or destruction of a record is a crime.”

Assistant Orange County District Attorney Mike Lubinski said the email wasn’t specific enough to be “clearly criminal,” but he said he was still reviewing state law. He called on city employees to contact the DA’s office with knowledge of illegal destruction of records.

“The employees need to come forward, and we’ll talk to them,” Lubinski said. “No doors are closed.”

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