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Orange County officials may have found a way to continue to immediately destroy many public records of their government communications, despite a court ruling that it’s probably illegal to do so.

The proposed order to implement the ruling, which was put forward by both sides of the case, is “toothless,” said Terry Francke, an attorney and statewide expert on public records.

“I can’t understand what the [proposed order] means by forbidding the ‘enforcement’ of a ‘policy’ that simply makes the timing of records destruction discretionary,” said Francke, who serves as general counsel of Californians Aware and is Voice of OC’s open government consultant.

County attorneys declined to say if officials will still be able to destroy public records within two years.

A judge ruled two weeks ago, in a case brought by the American Civil Liberties Union (ACLU), that state law requires public records be preserved for two years.

California law says “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

Judge Sheila B. Fell ruled the county’s policy allowing immediate destruction of public records lacked legal authority, and directed the ACLU to submit a proposed order implementing her ruling.

But the proposed court order she’s been asked to sign – which resulted from negotiations between the ACLU and county attorneys – does not order officials to keep records for two years.

Since 2017, county policy approved by OC supervisors says officials have the option of destroying official emails and text messages “at any time” if they consider them to be internal memos or “working notes” they no longer need. The policy calls these “transitory” records, a term that does not exist in the Public Records Act.

County officials declined to say if the proposed order would let them keep destroying public records before the two-year retention requirement under state law.

Voice of OC asked that question to four county officials – the county’s lead lawyer, Leon Page; the county attorneys handling the lawsuit, Rebecca Leeds and Adam Clanton and county spokeswoman Molly Nichelson.

Clanton declined to comment, referring comment to the spokeswoman. None of the four county officials answered the question.

“We’re still working with Plaintiff’s counsel on a course of action regarding the order at this time,” Nichelson said.

It was the county’s full statement about whether records could still be destroyed before two years, whether county employees will be notified that they can no longer destroy these records before two years, and whether county attorneys asked for the proposed order to leave out a requirement that records be kept for two years.

County officials declined to say what it means to stop “enforcing” a policy that gives officials the option of immediately destroying records.

Asked why the proposed order doesn’t require records to be kept for two years, ACLU officials said they will act quickly if they learn the county tries to get around the order’s intent.

“The proposed order prohibits the County from enforcing an illegal policy that violates the Government Code’s requirement that records be preserved for two years,” said Brendan Hamme, a lead ACLU attorney in the case.

“We will be monitoring the County’s compliance with the order as part of our ongoing discovery efforts and any attempt by the County to circumvent the clear intent of the Court’s order will be met with swift action.”

In response to Voice of OC’s questions, Francke said the county would be able to do the following without violating the proposed order:

  • Provide no update about the ruling to the 18,000 county employees, who have been told through the existing policy they can immediately destroy records they consider notes or memos they no longer need.
  • Keep the existing policy language in place stating immediate records destruction is allowed.
  • Continue destroying the records immediately, such as emails and texts about official business.

Hamme, the ACLU attorney, had a different take. He said the order means the destruction policy “is no longer in effect,” so the county “cannot destroy records” before two years.

“It is, therefore, incumbent on County Counsel to inform their employees about the preliminary injunction,” Hamme said. “We will be monitoring the County’s compliance with the Court’s order through discovery, including document requests, [written questions], and depositions.  If we understand that the County is circumventing the Court’s order, we could ask the court to modify the order.”

County attorneys have indicated they agree with this interpretation, he said.

“Based on conversations with [the county’s attorneys], we understand they are interpreting the order as we are—to prohibit document destruction,” Hamme said.

The four county officials – including their attorneys on the case – didn’t respond to follow-up emails, including one asking if they agree with the ACLU that the order means the county cannot destroy these records before two years.

In 2017, the city of Los Angeles settled a public records destruction lawsuit by agreeing that state law “does not allow for the destruction of documents less than two years old.”

The city also agreed to notify the plaintiffs, the First Amendment Coalition, at least 30 days ahead of time before implementing any policies that allow destruction of records less than two years old.

As of Tuesday evening, Fell hadn’t announced a decision on whether she was approving the proposed OC order, according to online court records. She has the option of issuing it as-is, or modifying it.

In her July 3 ruling, Fell found Orange County officials likely are breaking the law with a policy allowing immediate destruction of public records and another rule banning public commenters at Board of Supervisors meetings from asking questions of the supervisors or addressing supervisors by name unless they have permission.

“[State law] sets a two-year retention period for documents prepared or received in any manner other than pursuant to a state statute or county charter,” Fell wrote in her decision.

Fell rejected the county’s claim that a “transitory records” exemption, which is not mentioned in state law, allows them to delete public records before the law’s two-year retention period.

“Neither the [California Public Records Act] nor the Brown Act include exemptions based on the definition of transitory records used in the [county] Records Policy,” the judge wrote.

County officials developed the record destruction policy in the months following a landmark March 2017 California Supreme Court ruling establishing that the Public Records Act covers officials’ communications about government business on their personal phones and accounts.

Six months later, county supervisors passed a policy that the supervisors and the county’s 18,000 employees may “at any time” destroy emails and text messages they consider to be internal memos or “working notes” they no longer need. The policy was unanimously approved by Supervisors Michelle Steel, Lisa Bartlett, Andrew Do and former Supervisors Todd Spitzer and Shawn Nelson.

Orange County isn’t the only local government to tell its employees they can destroy official communications whenever they want.

Neighboring Los Angeles County, which is the nation’s most-populous county, has similar policies.

LA County mental health employees can destroy “transitory electronic communications,” including certain memos and meeting confirmations, “may be deleted as soon as the messages have served their purpose,” according to official policy.

A separate countywide policy for LA County states that unless the record has already been requested by the public or subject to a litigation hold, employees can “at any time” destroy “transitory and informal communications used to develop an official record.”

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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