County May Allow Immediate Destruction of Texts and Email

Photo by Flickr user ccarlstead, released under CC BY-NC-ND 2.0 license

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

  • Cory Briggs in Upland is the person to call if you value open government. He’s been on the front lines and fought the battles against just this type of bullsh|t. It’s the digital age, so retention of texts and emails are absolutely vital to any open government.

  • Debby Bodkin

    There are THREE licensed attorneys, aka officers of the court, serving on the OC Board of Supervisors, Spitzer, Nelson and Do. These supervisors, along with County Counsel and DA Rackauckas, are fully aware of the US Constitution, federal obstruction statutes and the oath they have taken. Government officials may vote to delete emails and text messages; however, public citizens also have the right to save all of their communications with government officials to prove any potential conspiracy crimes or wrongdoings via certified letters, online public comments, and SAVED emails, etc.

    As a non-attorney, IMO, let the OC Board of Supervisors and County officials delete all they want….. it will NEVER change the fact that the media and members of the public have many other ways to demand accountability from elected government officials. If you give the Supervisors, DA Rackauckas and County Counsel enough rope, they will all hang together. The real truths about the acts and communications by elected officials and licensed attorneys at law may be closer to public disclosure than expected. Let the deleting begin!!!!

  • Ed Romero

    What was it I overheard our CEO and his Asst. coaching my Office Manager how to COMMIT PERJURY. Look the Judge right in the eyes and DENY EVERYTHING, Deny it, Deny it, Deny it, the Judge will believe us and not Margie, and my Officer Manager replied “you mean you want me to LIE TO THE JUDGE, and they replies YES. Orange County California full of GOP Crooks, when they appear in Court they hide behind the 5th Amendment or JUST LIE.

  • Philmore

    Proposed by “The County” ??? Submitted by ” Two offices” ???? Get some names – these people need to be FIRED !!

    • David Zenger

      Of course it’s nonsense. The CEO and County Counsel only exist to serve the whims and defend the action of the BoS. Neither serve the public except insofar as the BoS is the “public” which of course they aren’t.

      Which is another way of saying neither the CEO or CoCo recognize any ethical imperative other than to serve their 5 masters. And the public has nothing to do with it.

    • Debby Bodkin

      I am not an attorney; however, it will be very entertaining to witness the licensed attorneys at law that currently serve on the OC Board of Supervisors (Spitzer, Nelson, Do) vote for a County policy that contradicts the US Constitution, not to mention federal obstruction of justice statutes. There must be something very BIG to hide nowadays….. and hopefully, the USDOJ and the FBI are closely monitoring County of Orange officials.

  • Jasenn

    This is absolutely absurd. It would deny the already ethically compromised county officials, including the BOS, to rewrite history. How can this belong in a democratic society?

  • Leon J. Page

    Yesterday afternoon, Mr. Gerda provided the County Public Information Officer with a two-hour deadline to comment on this article. The attorney in my office who has been most intimately involved in the preparation of this proposed policy (a former OC Register reporter) happened to be boarding an airplane and was not immediately available to assist with the requested response. As a result of Mr. Gerda’s unnecessary haste, the Voice of OC has now published an article that is both misleading and inaccurate. I look forward to its retraction.

    If approved by the Board of Supervisors, the new records retention policy will require that *all* County emails be kept for two (2) years. (San Diego County, in contrast, retains emails for only sixty (60) days, and the Superior Court retains emails for one (1) year.)

    Under the proposed policy, the County’s email server will only delete emails two years and one day after an email is sent or received. Emails *may* be saved for longer than two years, but they must be saved in a location other than the server. In my opinion, this proposed policy satisfies the County’s legal obligations and business needs while not overburdening the County’s storage and records management.

    The policy also requires text messages be used only for “transitory records” — in other words, for communications no more significant or substantive than what might once have been scribbled on a sticky note. The retention of official records on a text messaging cell phone application is not appropriate. As such, the proposed policy provides that text messages may be used for short notes (e.g. “Running late to a meeting”) but not for official records subject to retention. Only with specific departmental approval may a County employee use a text message as an official record. If a text message is used in this manner, the policy requires that the text message be immediately saved in an alternate location.

    If adopted by the Board, the proposed policy will enhance the County’s ability to retain its records and improve its capabilities when responding to public records requests, thereby promoting greater transparency in County government. The Voice of OC should welcome its approval.

    • LFOldTimer

      It appears to me that Mr. Gerda used quoted text from the proposed policy. Are you claiming the quotes are inaccurate?

      “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.”

      Who is the county employee to decide whether a “transitory record” that pertains to government operations is not substantive enough to retain for the public record? That shouldn’t be his call. If it pertains to public business the people should have a right to access it.

      This new policy would create a means for the county employee to circumvent transparent public disclosure requirements and conceal communications that the public has every right to see.

      The BOTTOM LINE is that this new policy would NOT strengthen public disclosure requirements – it would WEAKEN what we currently have.

      My guess is that this is pushback to the recent VOC lawsuit that forced the county to turn over communications that it attempted to conceal.

      When are the county execs going to figure out that they serve us – and we don’t serve them?

      I thank Mr. Gerda for his informative article. I don’t think he needs to retract a single word.

      • David Zenger

        You mean you don’t believe the Board of Supervisors’ personal attorney? Cynic!

    • David Zenger

      Wow, That Nick Gerda guy sure has a reading comprehension problem, doesn’t he? Of course he isn’t the lawyer for a bunch of ethically challenged politicians, either, so who is the public to believe?

    • verifiedsane

      Leon Page is nothing more than an over paid BoS apologist tool….talk about a bunch of double speak and non-sense gobbledygook….

      • David Zenger

        “Leon Page is nothing more than an over paid BoS apologist tool….talk about a bunch of double speak and non-sense gobbledygook….”

        He is following in a long and proud line of apologist tools.

    • Debby Bodkin

      Dear Mr. Page: I cannot help but wonder why you felt a need to comment on this Voice of OC article. Why now?

      1. You have a fiduciary duty to investigate and take corrective action for public corruption crimes reported to you as related to the business and employee operations of the County of Orange — and you have refused.

      2. You have a fiduciary duty to ensure that the County of Orange retain defense counsel/law firms that do not possess conflicts of interest based on representing clients with potential adverse interests — and you have refused.

      3. You have enabled the OC Board of Supervisors and DA Rackauckas to make Orange County, California, an unsafe place to live and work because of your legal advice and failures to act on behalf of the public.

      4. Would you like to see the thousands of pages of letters, emails and documents sent by me to County of Orange officials relating to serious RICO crimes committed by government officials and attorneys in OC? If so, please advise.

      5. Please stop blaming Mr. Gerda for County of Orange stalling and BS. You have had plenty of time to clean the filth in the County of Orange and have refused!

      Mr. Page, in closing, please do not insult the citizens of Orange County, CA with your false assurances about transparency in government. We are intelligent individuals and know what your priorities are — PROFIT on behalf of yourselves, not the County of Orange.

  • LFOldTimer

    So where’s grandstander Todd Spitzer? Wouldn’t he return phone calls on this subject matter???

    Normally we can’t shut the guy up. Suddenly he’s quiet as a church mouse! lol.

    Since Todd was the catalyst for the lawsuit to prevent VOC from obtaining email communications per his bible-boy handcuffing escapade I suspect he’s behind this new proposed county cover-up policy that would make Kim Jung-Un blush.

    Seriously, this county is turning into a kleptocracy run by a group of little dictators.

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  • Smeagel4T

    Apparently Monty Python was wrong. It is possible to elect kings.

  • David Zenger

    At least they’re not trotting out the phony pretext of limited electronic storage space. Not yet anyway.

  • Jacki Livingston

    Why am I not surprised. Then Spitzer’s little bulldog who sent me a threatening email in a snit could just pretend it never happened. Weenie.

    • Debby Bodkin

      No Jacki…. IMO, and as a non-attorney, I continue to save EVERYTHING sent to government officials… and I know you have too. Please continue to SAVE everything sent to elected officials–one never knows when the day will come to submit hundreds, most likely thousands of communications that were deleted by elected government officials in the OC. The Supervisors may vote to delete everything they see fit to get rid of…. but why now suddenly? Is there something BIG to obstruct from public disclosure.

      Remember, Michelle Hadley served months in the OC jail because her ex (a US federal marshal) and his wife told law enforcement she was sending threatening emails….. No one checked IP addresses and DA Rackauckas started prosecution proceedings against Hadley. When law enforcement eventually checked IP addresses, they learned it was not Michelle Hadley but allegedly Angela Maria Diaz. OC law enforcement did not investigate the husband of Angela Diaz, US Marshal Ian Diaz–they chose to target only Angela. IP addresses do not lie…. it appears the OC Board of Supervisors may be sealing the final nail to their coffins. Cannot wait to see the official vote regarding this new policy.

  • verifiedsane

    The no-ethics commission should get right on this…..LMAO

    “The proposal was developed by officials at two offices
    directly overseen by county supervisors, the CEO’s office and County
    Counsel’s Office” – once again the BoS want to erase all the tracks that might lead to uncovering their ongoing backroom crime wave that’s being perpetrated against the citizen’s of OC…..more secrecy = more corruption = more of the same from OC government