A legal battle over public records destruction and public comments played out in an Orange County courtroom Wednesday, as the ACLU and county lawyers delivered their arguments to a judge deciding whether county officials are breaking the law.
The lawsuit alleges the county government has a host of illegal and unconstitutional policies and practices that stifle public information and debate.
They include a ban on public commenters addressing the elected county supervisors by name, and a policy approved by supervisors that lets themselves and other county officials immediately destroy public records they decide don’t need to be kept, including emails and texts about government business.
“They have multiple rules that violate the constitution and statutory law,” ACLU attorney Brendan Hamme said during oral arguments Wednesday.
He quoted a U.S. Supreme Court ruling: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
County lawyers argued the supervisors have broad authority to limit public comments to ensure the efficient conduct of public meetings. And the immediate records destruction was legal and necessary, they said, to not burden officials with having to hold on to years of records.
If the public requests a “document that’s not been destroyed,” it is subject to disclosure under the Public Records Act regardless of whether county policy allows its immediate destruction, said Deputy County Counsel Adam Clanton.
“What [the plaintiffs] seem to be requesting boggles the mind in terms of volume,” said Clanton, saying it would turn 18,000 county employees’ “recycling bins into banker’s boxes of materials.”
A lawyer for the plaintiffs shot back, noting county policy prior to 2017 did not have the provision allowing immediate destruction of records, and that the county hadn’t shown any evidence it had been a burden for officials to retain the records. County lawyers did not challenge that point.
Superior Court Judge Sheila B. Fell will decide whether the county policies break the law and whether to issue an order blocking them from being carried out. After hearing the oral arguments Wednesday, Fell said she will issue a tentative ruling.
The ACLU and another lawyer for the plaintiffs, the People’s Homeless Task Force, argued supervisors were stifling the First Amendment rights of public commenters by prohibiting them from addressing their elected representatives by name.
A county policy regarding public comments, known as Rule 46, states that “All remarks and questions” shall be made to “the Board as a whole and not to any individual Board member.”
It adds, “No question shall be asked of any Board or staff member without first obtaining permission of the Chair.”
Hamme, the ACLU lawyer, said that’s blatantly unconstitutional.
“Addressing supervisors [by name during public comments] absolutely is protected speech,” Hamme said during the oral arguments.
The lawsuit points to an example of a task force member, David Duran, who asked during public comments if he can address a particular supervisor by name. In response, Supervisor Michelle Steel told Duran he “can talk [sic] whatever you want. Except attacking.”
“The Board’s own conduct demonstrates that the real purpose of the prohibition on addressing individual Supervisors is to shield them from criticism,” the lawsuit states.
County lawyers said commenters can still mention individual supervisors, as long as their comments are directed to the board as a whole.
The Ralph M. Brown Act and First Amendment provide “broad discretion” for officials to allow “efficient conduct at those meetings,” said Adam Clanton, the county lawyer.
The ACLU also took issue with a county records policy supervisors approved in 2017, which says officials may “at any time” destroy emails and text messages they consider to be internal memos or “working notes” they no longer need.
ACLU lawyers said that violates a state law that has a two-year waiting period before counties can authorize destruction of public records.
California law clearly establishes a right for the public to obtain government records, and that right is thwarted if the records are destroyed, said Zachary W. Byer, a lawyer with Kirkland & Ellis who joined the ACLU in the case.
“Access to information concerning the conduct of the people’s business is a necessary and fundamental right of every person in this state,” Byer said during oral arguments, quoting state law.
By destroying records that could otherwise be disclosed under public records requests, he said, the county is taking away the court’s ability to decide if it’s in the public interest for documents to be disclosed.
“There’s no way for the court to conduct that balancing test [on whether to release public records] if the record has already been destroyed,” Byer said.
The plaintiffs cite a state law allowing county supervisors to authorize destruction of records that are more than two years old. “It generally requires the County to retain records for two years,” the ACLU lawsuit states.
County lawyers argue they can legally destroy public records under a different state law they said does not require a waiting period before records can be destroyed.
That section “does not require a time limit for the retention of records,” Clanton told the judge.
The ACLU responded by pointing to yet another law saying counties can destroy records before two years if they’re duplicates.
“Only duplicates…may be destroyed if they are less than two years old,” the ACLU lawsuit states.
The ACLU lawsuit also claims supervisors have illegally moved general public comments to the end of their hours-long meetings, reduced speaking time from three to two minutes even when just seven people want to comment, and illegally restrict the release of surveillance camera footage of the board room.
County lawyers said officials were well within their legal authority to do so.
Clanton cited a court ruling he said found limits on public comments are reasonable if they preserve the ability to “conduct efficient and orderly board meetings.”
The withholding of surveillance video is necessary to protect against blind spots in video coverage that could be exploited by people who want to do harm, he said.
Before the 2017 change, county policy did not allow immediate destruction of communications about public business.
But earlier that year, the California Supreme Court for the first time established that the public records act covers officials’ communications about government business on their personal phones and accounts.
While state law requires public records be kept for two years, the Supreme Court ruling was silent about records retention. Several months after the ruling, Orange County and other local governments passed policies allowing immediate destruction of such records.
The immediate destruction policy was unanimously approved in September 2017 by supervisors Steel, Lisa Bartlett, Andrew Do and former supervisors Todd Spitzer and Shawn Nelson. The records destruction policy took effect in December 2017.
The plaintiff in the lawsuit, the People’s Homeless Task Force, is an advocacy group of residents concerned about the county’s growing homelessness, and its members have often publicly criticized supervisors during public comments.
The task force was co-founded by advocates Mike and Jeanine Robbins, Lou Noble, Linda Lehnkering, David Duran, and others, according to their suit.
In the final moments of oral arguments Wednesday, a county lawyer argued the task force was seeking an “extremely broad and extremely sweeping” order blocking county policies.
The plaintiff’s attorneys, meanwhile, argued there’s a permanent harm to the public if government is immediately destroying records about their conduct that would be subject to public records requests.
“The problem is, if the county destroys a record…and a records act request is made tomorrow, there’s no document to potentially hand over,” Byer told the judge.
Correction: A previous version of this article misspelled attorney Zachary Byer’s last name.
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at [email protected].