By JW August
Email is part of our lives now. It came on like a category five hurricane just a generation ago, changing the world of business and bureaucracy and creating the need to do many things in a new way—like preserving government records, where the norm up to the had meant warehouses full of paper files.
Just how long government agencies in California should hold onto mail or other electronic communications is a repeated topic of debate among transparency advocates, lobbyists, legislators and agencies.
For example, an Alameda County Grand Jury report in 2015-2016 found some cities in its jurisdiction “systematically destroy city related emails within 60-90 days”. It noted that one, Berkeley, defined e-mails as “generally preliminary drafts” and didn’t need to be retained. The jury called it a poor policy. One of its recommendations is the key element of new state legislation.
Assemblyman Todd Gloria’s AB 1184 proposes that public agencies—state and local—keep for at least two years all records of public business “transmitted by electronic mail or similar messaging system.”
Longstanding on the books in California in Government Code section 34090 are retention policies enacted in the paper records era; two years for cities and counties, three years for schools districts. It’s time now to treat electronic records with the same degree of importance when it comes to retention. This legislation would become part of the California Public Records Act. And therein lies the rub.
The California Special Districts Association—which up to now has had no fixed retention minimum under section 34090—worries that by making the legislation part of the CPRA, its member districts will not be reimbursed for the funds they need to spend to increase data storage and other related costs. These districts are all over the state, with 85 percent of them responsible for just one function such as fire protection, water, pest control, sewage and others.
The special districts’ preference, says Terry Francke of Californians Aware, would be to move the legislation to another section of state law. The districts would then become eligible for reimbursement. The CPRA has never had a record retention provision, and that could also be used as an argument to move the bill to general legislation such as section 34090, where resulting new costs would be eligible for state reimbursement.
We may see continued opposition to this bill in the Assembly Appropriations Committee from the League of California Cities, which has argued that email shouldn’t be subject to an archiving mandate, instead allowing each agency to preserve only the information needed for their own purposes. Attorney Francke says the League bases this argument on an attorney general’s opinion in 1981 which dealt with recordings of public meetings. He notes this was before email’s widespread use and state constitutional guarantees of the public right to public records.
Another potential hurdle; do electronic messages as defined by the bill include all social media platforms? Do social media messages by an agency have to be stored as well? It’s not clear in the legislation but probably should be clarified by amendment. It would be simple enough to limit this required storage to any social medium paid for by taxpayer dollars doing the public’s business. For example, if the department of dog-catchers maintains a Facebook page or communicates by Slack for official purposes, then those messages should be kept for two years.
Francke also pointed out that there are now apps that will erase emails as soon as they are read. This should be banned for use by public officials and government employees said Francke. At the federal level, Rep. Elijah Cummings has introduced a bill to do this: The Electronic Message Preservation Act.
Todd Gloria’s Assembly Bill 1184 needs some tweaking. But the concept is a worthy effort and every attempt should be made to make it part of our state’s law. Distractions and attempts to torpedo it by claims of high costs or the burden in complying just don’t cut it.
JW August is a journalist and past president of Californians Aware-based nonprofit organization established to help journalists keep Californians aware of what they need to know to hold government and other powerful institutions accountable for their actions.