An Alameda County Grand Jury
probe into City of Fremont's email retention policy has found purging most
email records after 30 days deprives residents access to crucial information
about how and why public policy, regulations and laws are formulated.
"Destroying emails
prematurely not only prevents public access to vital information, but also
impedes investigations of wrongdoing," the report released Monday said.
The grand jury concluded the city's interpretation of state statutes cited in
the report are "contrary to the spirit of open and transparent government
and must be changed."
Based on a citizen's
complaint alleging a violation of state law, the grand jury started an
investigation into the city's administrative regulations defining all unsaved
emails as "preliminary drafts" which are destroyed after a 30-day
period -- as a result excluding them from disclosure under the California
Public Records Act. After 30 days, the emails are automatically deleted unless
an individual employee or advisory volunteer determines the email is a record
that needs to be retained.
"The grand jury examined
California state statutes and Fremont policies governing the retention and
purging of public documents, and spoke to advocates on both sides of the issue
concerning the retention of emails. The grand jury is deeply concerned with
Fremont's loose interpretation of California government transparency and
retention statutes and the city's apparent intentional efforts to exclude the
public from accessing city emails," the report said.
City employees and volunteers
who use the municipal email system -- about 1,300 individual mailboxes --
receive approximately 3,000 emails per day, the report said. The investigation
included interviews with city employees and a representative of a nonprofit
organization dedicated to First Amendment quarrels.
California's Public Records
Act provides the public with the ability to request documents and records from
government agencies, including emails, which help to explain how and why
important decisions are made. However, the law has certain exceptions
preventing governmental agencies from disclosing some forms of information,
such as medical and personnel records to protect an individual's right to
privacy.
Also, it specifically exempts
public access to preliminary drafts, notes and inter-and intra-governmental
agency memos. The act does not specify how long a public record must be
retained by governmental agencies.
The bulk of city records must
be retained for at least two years under the statute's requirements. However,
"records" is not defined.
"Some public agencies
have taken the position that their organization's emails are not records even
though the Public Records Act clearly defines records to include email
communications."
Fremont's definition of a
public record is not based on the Public Records Act. Rather, it is based on a
more than two decade old state attorney general opinion, which describes a
public record as —... a thing which constitutes an objective lasting indication
of a writing event or other information which is (retained) ... because it is
necessary or convenient to the discharge of the public officer's duties and was
made or retained for the purpose of preserving its informational content for
future reference.
"It is the position of
the city that its unsaved emails do not fit within the attorney general
opinion; therefore, they are not public records as understood by the state's
record retention statute," the report said.
As a result, Fremont
maintains it is not required to retain all emails for two years like other
public records in its possession. Because city emails are purged after 30 days
(meaning the documents are not kept in the regular course of business), the city
maintains they amount to preliminary drafts that are exempt from disclosure
under the Public Records Act. From the grand jury's perspective, Fremont's
questionable logic appears to exempt all emails (unless separately saved) from
disclosure, even though the Public Records Act specifically includes
emails."
In its findings, the grand
jury said classification of emails as preliminary drafts denies the public
opportunities to watch over government operations and classification of emails
as records not kept in the regular course of business, unless specifically
saved, deprives the public of significant opportunities to monitor government.
As recommendations, the grand
jury suggested a change in email retention policy to require emails are stored
and retained for at least two years and another change in email retention
policy so that no emails are classified as preliminary drafts. Instead, all
such emails are retained in the regular course of business and subject to the
Public Records Act.
Fremont Mayor Bill Harrison
said the city's email retention policy developed over time as Internet
technology has changed.
"It's something we've
evolved on for sure," Harrison said Tuesday. He noted the city's first
email policy dates back 15 years.
Prior to having a meeting
with the grand jury members to discuss the findings, Harrison said a new system
was put into place to retain emails for up to 90 days. Further, the city is
looking to extend preservation of emails to two years from the original
"sent" date and to budget funds for the data storage, he said.
The city
has until Sept. 29 to formulate a response to the report indicating agreement
or disagreement with the findings and to describe actions taken on
implementation of the recommendations.
July 2, 2015
San
Jose Mercury News
By Julian
J. Ramos – Fremont Bulletin
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