Fremont council responds to Alameda County Grand Jury report on email retention

Despite a plea Tuesday night to delay a decision, Fremont City Council unanimously approved a response to an Alameda County Grand Jury report regarding the city's former municipal email retention policy.

Released June 29, the probe -- based on a citizen's complaint alleging a violation of state law -- found purging most email records after 30 days deprived residents of access to crucial information about how and why public policy, regulations and laws are formulated.

However, there was "no clear finding the city acted unlawfully," Fremont City Attorney Harvey Levine said Tuesday.

A policy for about 15 years, the city's administrative regulations defined all unsaved emails as "preliminary drafts" which were destroyed after a 30-day period -- as a result excluding them from disclosure under the California Public Records Act. After 30 days, the emails were automatically deleted unless an individual employee or advisory volunteer determined the email was a record that needed to be retained.

City employees and volunteers who use the municipal email system -- about 1,300 individual mailboxes -- receive approximately 3,000 emails per day, the grand jury report said. The investigation included interviews with city employees and a representative of a non-profit organization dedicated to First Amendment issues.

Effective June 1, the city's revised Electronic Communications and Internet Use and Retention Policy extended the purge cycle to 90 days. Before the grand jury investigation began, the city coincidentally had been working on extending retention to 90 days and researching the cost and selection of an archive system for emails up to two years, which the state's Public Records Act calls for, Levine said.

Also, language in the policy which characterized emails as "preliminary drafts" has been eliminated.

The lone public speaker on the subject, William Yragui, co-founder of Mission Peak Conservancy, said he was "somewhat dismayed" after reading the city's overall "glib" response in a four-page letter from Mayor Bill Harrison to grand jury Foreman George Phillips.

"... Fremont needs a transparent email policy, however, the grand jury found that Fremont's policy is neither transparent nor lawful," he said. "The proposed response to the grand jury report crafts two lines of defense -- users choose which records to retain for two years or print the paper and the remaining records are deleted automatically in 90 days. This is Silicon Valley and we live in an area of digital storage. Paper printouts are brazenly evasive and hide records from electronic searches. City employees don't have the authority to obstruct retention of records because this might hide evidence of malfeasance, but Fremont actually gives them that capability. Furthermore, the city's own manager needs those records for operational oversight."

Yragui asked council members to table the item for staff reconsideration or to perhaps have a third party external attorney redraft the statement prior to a Sept. 28 deadline.

Mission Peak Conservancy believes multiple council members violated the Ralph M. Brown Act, the state's open meeting law, when they met with the Vineyard Home Owners Association in 2014, Yragui told this newspaper. The group requested emails between the homeowner's association membership and council members before and after the meeting. Mission Peak Conservancy's concern is the "appearance of policy being created without the public having an opportunity to participate, comment or intercede," Yragui said.

In response to the request, Levine said the city provides fremont.gov email addresses to council members. However, since they are relayed to the council member's private email addresses, forwarded emails are not retained by the city.

"This is contrary to transparent government and creates a situation where the City of Fremont officials and council members can negotiate without public comment or oversight. Furthermore, the new email retention policy leaves each user to make a decision as to whether an email should be saved or not. This eliminates the public's ability to monitor emails that are exchanged by public officials and constituents including developers, business owners and or other parties," Yragui said.

Before the report was issued, Harrison met with the grand jury. On Tuesday, the mayor said the grand jury report was written prior to the meeting and the city had already amended the deletion policy to 90 days.

The response letter reflects policies in place adopted June 1, before the city saw the grand jury report, Levine said.

—... We do not agree with their findings. But before I go on, it's clear they did not make a finding that the city is acting unlawfully. Had they concluded that it would have been under the findings. What they say is, 'we don't like how you're doing it. It's not transparent enough,'" Levine said.

He added the origins of the complaint are unknown to the city.

"We don't know who complained about our system, but no one complained to us," Levine said. "Nonetheless, we were getting ready to change it."

At the moment, the city is considering a plan that would take emails received or sent by a city email address system directly into the archive system for two years, with no decision making by the employee whether an email is a record or not, with one copy to the email system and one copy to the archive system, according to city Information Technology Services Director Marilyn J. Crane.

Purchase of an onsite system or a cloud-based system -- to store and access data and programs over the Internet instead of a computer's hard drive -- could occur later this month or in October, she said.

Prices for an onsite system could be $55,000 in one-time costs and $6,500 per year for maintenance and support of equipment and software. For a city-hosted cloud system, costs could be $6,000 for installation and $50,000 for ongoing subscription to keep data in the cloud, Crane said. Once initial one-time and ongoing costs are determined, funds, which are not programmed in the 2015-16 budget, could be approved by Fremont City Manager Fred Diaz, she added.

September 10, 2015

San Jose Mercury News

By Julian J. Ramos