Orange County officials would gain broad approval to immediately delete their emails and text messages about official county business from county email systems and phones, under a policy up for adoption next week that would prevent the public from obtaining the communications through public records requests.
The policy would define text messages between county officials on their county-issued phones as “transitory records” that “may be deleted at any time.”
It would also allow officials to delete their county emails “at any time” if the email “is considered a transitory record.” The policy broadly defines “transitory record” to include anything deemed to be “working notes” or memos that officials consider not necessary to keep in order to do their jobs.
The county plan could be illegal, according to two attorneys who specialize in California public records law.
State law requires the county to maintain records for two years, and there are no laws or court rulings that allow “the prompter destruction of ‘transitory’ records at the discretion of the employees who possess them,” said Terry Francke, general counsel for the nonprofit Californians Aware and an expert on the Public Records Act. He is Voice of OC’s open government and public records consultant.
“Using this pretext would make it easy for officials to destroy politically or personally embarrassing messages with no public trace,” Francke said.
“It’s ludicrous in my opinion,” said Kelly Aviles, another public records attorney, who represents Voice of OC in records lawsuits. She expressed strong doubts the proposed policy would stand up in court.
The proposal “leaves wide open – which I suspect is their intention…what they can delete.”
A county spokeswoman, Jen Nentwig, said she didn’t have answers Thursday about whether the county’s attorneys believe the proposed policy would prevent illegal destruction of public records, and what the legal justification is to allow immediately deletion of communications about county business.
County supervisors will vote at their regular meeting Tuesday on whether to adopt the proposed policy. The proposal was developed by officials at two offices directly overseen by county supervisors, the CEO’s office and County Counsel’s Office.
There could be serious legal ramifications for the county if supervisors adopt the policy, Aviles said.
In addition to the cost to county taxpayers, which would include attorney’s fees for both sides if the county loses a lawsuit, she said, “there are actual criminal statutes for destruction of public records.”
One law, Government Code 6200, makes it a crime punishable by prison time for officials to destroy public records.
This week, the Los Angeles City Council agreed to settle a lawsuit Aviles and the nonprofit First Amendment Coalition filed over the city deleting emails and other records before the two-year requirement in state law.
In their settlement, Los Angeles agreed state law does not allow the destruction of records less than two years old, according to the LA Times.
“The people’s right of access to public records is meaningless if the government destroys those records before the public can see them,” said David Snyder, executive director of the First Amendment Coalition, in a statement about the settlement.
Because the city fought the lawsuit, taxpayers must cover all of the city’s legal costs, plus $20,000 for the plaintiff’s attorney fees.
Orange County’s current policy requires county emails to be kept for at least two years, at which point emails can be deleted if another law doesn’t require them to be kept longer.
In addition to giving officials broader power to immediately delete county texts and emails, the proposed policy would also require officials to delete county emails that are more than two years old.
“All emails must be deleted from the department’s email servers two years and one day after sent/receipt,” unless the email is required to be kept longer, the proposed policy states.
The current policy allows emails to be deleted after two years, but does not require it.
The more expansive records deletion proposal comes after the state’s highest court expanded the public’s ability to access to officials’ text messages and emails.
In a unanimous decision, the California Supreme Court ruled in March that when officials use private devices and accounts – like personal phones and email addresses – to communicate about public business, those communications are public records. Cities and counties had long argued that such records did not have to be disclosed.
Earlier this month, county officials enacted a policy in response to the ruling. That policy, which was put into effect on Sept. 11, bans officials from communicating about county business with private devices and accounts, punishable by discipline, including getting fired.
At the same time, it says when such communications do occur, those messages must be transferred to the county and deleted from the personal device or account.
Orange County supervisors are scheduled to vote on the expanded deletion policy at their Tuesday meeting, which starts at 9:30 a.m. at the county Hall of Administration in Santa Ana.
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at firstname.lastname@example.org.