Orange County officials, after a losing a court battle on the issue, are putting forward new language that can destroy certain public records before a two-year requirement in state law.

The new policy, up for approval Tuesday by county supervisors, comes on the heels of a court ruling and order this summer tossing out the county’s previous reason for destroying records before two years.

After losing in court, county officials declined to say if they would stop immediately destroying their communications about government business via personal devices and accounts, which the California Supreme Court ruled are public records. State law requires public records to be kept for at least two years.

“I think you and the public have the right to be concerned,” said Terry Francke, an attorney and statewide expert on public records, after reviewing the county’s proposed policy.

If approved, the new policy would let officials immediately destroy records they believe are not “required by law or County policy to be filed and preserved,” without saying it must first be imaged or copied as state law mandates. 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.

And it would let officials destroy “records used to gather data for reports and studies” any time after their “administrative value ends.”

County officials said Monday their proposal is legal, while declining to say how these provisions comply with the two-year retention requirement in state law.

“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,” county officials said in their full statement, provided by spokeswoman Molly Nichelson.

Officials declined to say 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.

“The County’s proposed policy – like the prior version the court ordered it to cease enforcing – seems to allow for immediate destruction of a wide variety of public records,” said Brendan Hamme, an attorney with the American Civil Liberties Union (ACLU) who successfully fought the county’s existing destruction policy in court.

“It, unfortunately, appears to be yet another bald attempt by the County to circumvent the clear ruling of the court, shirk the requirements of the Government Code, and rob the Orange County community of the transparency to which they’re entitled.”

Francke, who serves as general counsel of the nonprofit Californians Aware and is Voice of OC’s open government consultant, said he was “doubtful” of the county’s proposed policies.

“The [state] Supreme Court has said that communications about official business on private devices are subject to the Public Records Act,” he said. “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.”

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.

In its 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.”

Later that year, county supervisors passed a new policy allowing officials to 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 calls 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.

In early July, Judge Sheila B. Fell ruled the county likely is breaking the law with its records destruction policy, along with another another county rule banning public commenters from asking questions of county supervisors or addressing supervisors by name unless they have permission.

“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.

After the ruling, county attorneys declined to say if officials will still be able to destroy public records within two years.

County officials and the ACLU then agreed on a proposed order for Fell to sign, which banned the county from enforcing its policy allowing immediate destruction of “transitory records.”

But a few days later – on 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 letting county officials continue immediately destroying records they decide “are not expressly required by law to be filed and preserved.”

Their proposed order didn’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.”

ACLU lawyers took issue with it at the time, telling the court: “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].”

Ultimately, Fell signed the original proposed order on Aug. 21 – without the county’s proposed changes.

Francke said the county could clear up doubts about its new proposed policy by giving examples for how it would work in real life.

“I think it would help an awful lot to at least bring some clarity, if some examples were offered of how this would apply. And if they don’t offer examples, it leaves a good deal of ambiguity here that could simply lead to either ignoring the Public Records Act or ignoring the Government Code requiring retention of county records for two years,” Francke said.

“I think you’ve asked good questions. And if they have trouble answering, then I think that’s going to be a bit of red flag in how this is going to be observed.”

County officials have not provided examples for how it would apply the destruction policies Voice of OC asked about, and declined a request to do so.

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

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