Under California law, the public has a right to see communications about government business – even when officials have those conversations on personal phones and email accounts.
Officials can’t hide their texts and emails about agency business from public records requests by simply having those conversations on their personal devices, the state Supreme Court ruled in 2017.
But that’s exactly what’s been happening in Orange County, according to the FBI.
A recent FBI search warrant affidavit quoted Anaheim Mayor Harry Sidhu talking about how he used personal email and text messages to leak internal city information to the Angels baseball team during negotiations to sell the city-owned stadium.
“SIDHU further explained that ‘nothing came from the city hall going to you… [i]t was my private emails on even my text and all that with you,’ ” the FBI affidavit states.
FBI Agent Brian Adkins wrote that he believes those emails included an internal city document discussing negotiation concerns, which the FBI says Sidhu sent to the LA Angels through intermediaries “in an effort to assist the Angels.”
Sidhu, through his attorney, disputes that he forwarded protected information to the LA Angels.
FBI officials note in their affidavit that the emails in question likely should have been turned over to a citizens group that filed a Public Records Act request and lawsuit.
But they weren’t.
In a January meeting secretly recorded by the FBI, Sidhu told an associate he had destroyed his messages.
“I erased everything,” said the mayor, according to the FBI transcript.
The FBI wrote that Sidhu’s communications were probably within the scope of the residents’ Public Records Act request – but wasn’t disclosed.
“I believe the Key Issues email/document would have likely fallen within the scope of [the citizens group’s] PRA request, but that was nonetheless not turned over,” wrote FBI agent Brian Adkins in his sworn affidavit.
Yet the mayor’s approach seems to have a green light from the city’s own records policies – which aren’t unique in Orange County.
State law requires public records to be kept for two years.
Yet Anaheim and other cities have adopted local policies that let officials destroy their communications much sooner than that.
In Anaheim, the city’s policy is to automatically delete emails involving the mayor, City Council and executive staff after just 90 days.
The rest of City Hall’s emails get automatically destroyed after 37 days, according to the policy and a sworn deposition interview of the assistant city clerk.
The records policy also says “The City is not implementing any retention policy on E-mail,” though city spokesman Mike Lyster said officials manually choose emails to get saved for two years if the official decides they’re “needed for the ongoing business of the city.”
The city also appears to not require officials to sign that they’ve turned over all public records they’re required to disclose from their private devices – despite the state Supreme Court endorsing that approach to ensure public records are turned over while protecting officials’ privacy.
“These are the kinds of things that allow this corruption to run rampant,” said Kelly Aviles – the attorney who fought for the records the FBI referenced – referring to Anaheim’s policies to automatically destroy emails after 37 or 90 days.
“You can attest to doing whatever search you want, but if you’ve destroyed all the records, what good does that do? So at the base it’s making sure that agencies have record retention policies that comply with the law,” added Aviles, who also is general counsel for the statewide transparency group Californians Aware and is Voice of OC’s chief public records litigator.
David Snyder, an attorney and executive director of the First Amendment Coalition, said these kinds of policies deprive the public of their right to access government records.
“The law in California is crystal clear that government agencies are obligated to ensure that personal devices and personal email addresses of public officials are searched for public records,” Snyder said, noting that public records access is a constitutional right under the state Constitution.
“If what government officials do is change the channel to their personal devices or their personal email accounts…[and] they can trust that their agency is not going to require them to disclose from their personal devices, it blows a big hole in the Public Records Act,” he added.
In response to questions from Voice of OC, Anaheim Councilman Jose Moreno said it’s time to change the city’s policies so they preserve records for much longer.
“I do like 2 years. But I learned we can also have elected members and executive staff have their emails automatically archived for [an] indefinite period. So I’m going to look at that,” Moreno said in a text message to Voice of OC.
Councilman Avelino Valencia also supported overhauling the city’s current system, adding he’d be bringing something about it to the council alongside his ideas for new lobbying regulations.
“The changes I’ll be proposing include expanding the record retention timeframe and criminalizing the breaking of the city’s policies,” Valencia said in a text to Voice of OC.
Anaheim’s four other council members didn’t return messages for comment.
How Cities Handle Searching Personal Devices
In their 2017 ruling that made clear the Public Records Act applies to personal devices, the California Supreme Court found that such records must be searched for and disclosed, but left it to each agency to figure out how to do that.
The high court did endorse the search approach laid out by the Washington Supreme Court, which applied federal Freedom of Information Act procedures that require signed affidavits when officials search their personal devices.
“Employees who withhold personal records from their employer ‘must submit an affidavit with facts sufficient to show the information is not a ‘public record’ under the [Washington State] PRA,” the California Supreme Court wrote.
“So long as the affidavits give the requester and the trial court a sufficient factual basis to determine that withheld material is indeed nonresponsive, the agency has performed an adequate search under the PRA,” it added.
Across Orange County, rules on how they search their own records vary widely.
Irvine, Newport Beach and Mission Viejo officials said they don’t require affidavits when officials search their devices, while Santa Ana officials said they do.
In Santa Ana, staff members are required to search through their own devices, but they have to sign a statement under penalty of perjury swearing they’ve released all the relevant records according to Samuel Middleton, a senior clerical aide in the city clerk’s office.
“They sign a compliance affidavit…it declares all the records they found are the ones that were requested for, it releases liability for the city,” Middleton said. “We have copies of all the affidavits.”
To review a copy of the form Santa Ana city employees have to sign, click here.
Legally, there’s no real reason not to implement an affidavit requirement according to Bill Curley, city attorney for Mission Viejo, a city that’s regularly been questioned for a lack of transparency.
“The practical reason for doing it is essentially a defense for the city. If someone brings a legal challenge” Curley said. “If it’s later found out someone was inaccurate in providing that affidavit…the person who didn’t accurately sign the affidavit would be designated as the problem person.”
Despite the benefits Curley listed, his city doesn’t do it.
“If you’re as an agency comfortable that your people will do the right thing…you just don’t do it,” Curley said. “[If] you want to take no chances, you do the more formal process. If you’re comfortable your folks don’t have issues, then you just trust them and hope for the best.”
Aviles said even affidavits aren’t enough.
“This whole idea that people are just supposed to decide what is public records – especially when they’re the ones being investigated – is really problematic,” Aviles said. “I think it’s better that you don’t have communication through private devices – that all should be done through official channels.”
Last month, Cypress City Councilmembers instituted a new policy that they and their staff must use government accounts for city business, transferring any documents on personal devices to those publicly accessible ones.
The policy also requires that the officials sign affidavits declaring they’ve searched their devices and personal accounts to turn over the requested records.
While it’s unknown if more cities will implement policies like that in the future, Snyder said it’s badly needed going forward.
“So much public business these days is conducted on email and text, and unfortunately, a lot of that email traffic and that text traffic is taking place on personal devices,” Snyder said. “It’s just of critical importance that agencies actually follow the law and search for those records.”
Even text messages on government-issued phones can be difficult to get in public records requests.
Voice of OC recently requested text messages for a two-month period on the government-issued phones of county supervisors’ chiefs of staff.
The county took 24 days to officially respond, only to say they couldn’t conduct such a search because they didn’t have software to extract messages from cell phones.
Voice of OC looked up providers and learned such software can be purchased for just $49 per year for an unlimited number of devices.
“That’s unacceptable,” said Snyder.
“These are public records. The text messages of public officials are public records. And the county needs to figure out a way that it can search through those in an expeditious manner. And unless the cost of doing that is unreasonably burdensome, they need to purchase some software to do it.”
Voice of OC asked the county two weeks ago if it has considered purchasing such software, noting the $49 per year option.
County officials did not respond.
Noah Biesiada is a Voice of OC Reporter and corps member with Report for America, a Groundtruth initiative. Contact him at email@example.com or on Twitter @NBiesiada.
Nick Gerda covers county government for Voice of OC. You can contact him at firstname.lastname@example.org.