Orange County officials, without public discussion, approved a controversial new policy last week allowing immediate destruction of public records, despite state law and a court ruling saying they must be kept for two years.
The updated rules, which supervisors approved on a 4-0 vote Sept. 10, lets officials immediately destroy records they believe are not “required by law or County policy to be filed and preserved,” without imaging or copying them as state law mandates before destroying records less than two years old.
It also says officials “may” have to keep certain “communications held on private devices and accounts,” but doesn’t say what kinds of communications must be kept or for how long. The California Supreme Court has ruled that government communications through private devices and accounts are public records, though the policy doesn’t require these records to be preserved.
The new policy also lets officials destroy “records used to gather data for reports and studies” any time after their “administrative value ends.”
The policy change comes after a judge ruled this summer against a previous county policy allowing immediate destruction, finding the county had failed to cite a valid legal justification to destroy records before two years.
“We are deeply disturbed by the Board’s passage of the new records management policy. The new policy is entirely inconsistent with the court’s ruling on the prior policy,” said Brendan Hamme, the ACLU attorney who argued the case against the county in court.
“We will continue to hold the County accountable and enforce the rights of the Orange County community to a transparent government.”
The new policy was approved by supervisors Andrew Do, Doug Chaffee, Michelle Steel and Lisa Bartlett. Supervisor Don Wagner did not attend the meeting.
Chaffee, Steel, and Bartlett didn’t return phone messages seeking comment and asking if they believe the county’s new policy is legal.
In a phone interview, Chaffee said his understanding of the proposed changes came from county attorneys, who said the changes were made to conform with state law.
“What county counsel told me…was we’re simply trying to confirm with state law to eliminate some of the ambiguities caused by all the assertions of additions,” Chaffee said.
“I’m not really into that area [of public records law] to be very knowledgeable about it, but that’s what I understood – there was no conflict, in my understanding, in what we did with the court’s ruling.”
Asked how the new policy complies with the state law requiring that records destroyed before two years be imaged or copied, Chaffee said he would ask county attorneys about it.
The county’s attorneys and chief spokeswoman declined last week to answer that question; as well as why their proposal doesn’t require a two year preservation for communications about official business via personal devices and accounts, which the state Supreme Court ruled are public records.
Instead, they provided a statement saying the new policy is legal: “The proposed changes will update the County records retention policy to ensure continuing compliance with California law. The policy requires the County to retain all public records and other documents required by law to be preserved, for the duration required by law.”
Asked for their response to the ACLU’s concerns after the policy was passed, the county’s lawyers issued the same statement through a spokeswoman.
As part of their action last week, the supervisors also gave approval for secret changes to the records deletion policies at any time, without appearing on a public meeting agenda. The changes can be made outside public view as long as officials consider them “immaterial.”
Supervisors gave a similar authorization for secret changes two years ago, in September 2017, when the previous destruction policy was first approved. For two days last week, county officials declined to say what changes were secretly made over the two years leading up to last week’s vote, except that “there were no substantive changes made by the CEO’s Office.”
Voice of OC then filed a California Public Records Act for all of the changes between the 2017 and 2019 board votes, and county officials responded by saying no changes were made.
In its landmark 2017 ruling, 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.”
Several months later, in September 2017, county supervisors passed a new policy letting officials immediately 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 called these “transitory” records, a term that does not exist in the Public Records Act.
This year, the ACLU sued the county over the policy and won in Orange County Superior Court.
“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,” wrote Judge Sheila B. Fell in her July decision.
She followed up last month with an order implementing her ruling. In it, she directed the county to stop enforcing its “transitory records” policy for deleting public records before they’re two years old.
County lawyers then proposed the new policy, adopted last week, that provides new language allowing record destruction before two years.
After losing in court in July, county officials had declined to say if they would stop immediately destroying their communications about government business via personal devices and accounts.
“The [state] Supreme Court has said that communications about official business on private devices are subject to the Public Records Act,” said Terry Franke, a statewide expert on public records law who serves as general counsel of the nonprofit Californians Aware and is Voice of OC’s open government consultant.
“To me it suggests that communications on private devices are not only to be considered public records if they deal with government business, but are also subject to the two-year minimum retention rule,” Francke said, speaking in an interview last week about the county’s new policy.
The proposed policy allowing immediate destruction of records that aren’t otherwise required to be kept for two years “undercuts, to my way of thinking, the way the Public Records Act operates,” Francke added.
“The Public Records Act, of course, presumes that any records created or received dealing with public business are accessible to the public unless the agency can point to a law that either mandates or permits their being withheld. And, again, this is hard to square with what they’re proposing to do here,” Francke said.
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.