Orange County officials are asking a judge to let them continue to immediately delete text messages about government business and other unspecified public records, despite the judge ruling that state law requires public records be kept for two years.
County officials and the American Civil Liberties Union, which is suing the county, had previously agreed on a proposed order for Judge Sheila B. Fell to sign after she ruled against a county policy allowing immediate deletion of official text messages.
A few days later – on Wednesday, July 17 – county lawyers proposed changes to the judge, citing concerns they’d be required to keep “every post it note or scrap of paper” for two years. They asked Fell to sign a revised order with broad language allowing county officials to continue immediately destroying records they decide “are not expressly required by law to be filed and preserved.”
Their proposed order doesn’t define what kinds of records fall under that category for destruction. But county lawyers asserted in a court filing the same day that it includes official’s text messages, which they wrote “are not required by law to be preserved.”
The California Supreme Court established in 2017 that the Public Records Act covers officials’ text messages about government business, regardless of whether it’s on personal or work phones. And a state law says public records must be kept for two years, which Fell cited in her ruling against Orange County last month.
County officials declined to respond to questions about their proposed order, including what types of records they believe they’d be able to immediately destroy.
In its official court response to the county’s new proposal, ACLU lawyers said the county is trying to “minimize the impact” of the records ruling.
The county’s new filings “attempt to circumvent California Supreme Court precedent regarding the preservation of text messages,” the ACLU wrote.
“Contrary to Defendants’ contention that County employees’ text messages are not required by law to be preserved, the California Supreme Court has made clear that text messages—even those stored on personal devices—can trigger the requirements of the [Public Records Act],” the filing continues, citing the 2017 ruling.
In that ruling, City of San Jose v. Superior Court, the state Supreme Court stated “A city employee’s communications related to the conduct of public business do not cease to be public records just because they were sent or received using a personal account.”
Fell has not yet issued a decision on the proposed orders.
The county is proposing to continue using a “transitory records” justification to immediately destroy certain types of records, including after the judge rejected the “transitory” justification and said it doesn’t exist in state law.
“[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 in the Orange County case.
“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.
The “transitory records” justification “opens the door to deliberate [records] destruction to avoid later reference that would prove to be politically, ethically or legally embarrassing,” said Terry Francke, an attorney and statewide expert on public records.
“If public agencies want legal authority to dispose of ‘transitory’ records they should go to the Legislature and have it added to the law, because it’s not there now,” said Francke, who serves as general counsel of Californians Aware and is Voice of OC’s open government consultant.
At the heart of the arguments is whether county officials can immediately delete records, like text messages, that would be open to the public under the Public Records Act.
During oral arguments in June, the ACLU argued immediate destruction of records defeats the public’s ability to access them under the California Public Records Act, and violates state law’s requirement that public records be kept for two years.
County lawyers argued it would be burdensome to keep every record, and said that under the immediate destruction policy, the public can still access records if they request them before they’re destroyed.
California law makes it a crime for officials to willfully destroy public records – punishable by up to four years in prison – though prosecutions are rare.
The last time an official in California is known to have been prosecuted for destroying or removing public records was in the 1970s, Francke said.
That case involved the conviction of the Los Angeles County’s then-marshal for directing deputies to remove about 300 radio logs from county archives showing how official vehicles were used, among other alleged crimes.
Francke said county officials don’t need to be worried about being prosecuted for throwing away Post-It notes.
“Any concern for the prospect that county officials and employees might be exposed to criminal liability for destroying or otherwise disposing of a Post-It note or personal chitchat text exchanges seems to me well beyond farfetched,” Francke said.
In total, there have been three reported prosecutions of the record destruction law, and none of since the 1970s, according to Francke.
“Violations of [the records destruction law] are virtually never prosecuted, and then only when prompted by apparent or undeniable wrongful intent,” he said.
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.