A look at San Leandro’s City Attorney: Time to fire Meyers Nave?

San Leandro Talk has moved. You can now find this post here: http://sanleandrotalk.voxpublica.org/2011/04/16/a-look-at-san-leandros-city-attorney-time-to-fire-meyes-nave/

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City of San Leandro to destroy all e-mails, flaunt CPRA, get sued.

Another day, another opportunity for the San Leandro City Council to show its contempt for good governance, the voters and, well, the law.  This time it comes courtesy of City staff and the City Council’s Rules & Communications Committee, presided by no other than Mayor Stephen Cassidy.  The Rules committee has readied  an amendment to the city’s Administrative Code to provide for the automatic deletion of all e-mails from the Inbox/sent folder and trash folder of all city employees & officials after a mere 120 days (4 months).

Of course, the City knows quite well that, under the law what they are planning to do is illegal.  The California Public Records Act provides for the retention of government records for a minimum of 2 years.   It defines records as “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. ”  And this definition is quite broad, as both the attorney general and the California Court of Appeals have found: “This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to “the conduct of the public’s business” could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.”

The City, of course, is not prepared to argue that e-mails are not public records, because it would be a battle they would lose.  Instead, what they are doing is saying that as a matter of policy they will consider “every e-mail a preliminary draft and not retained in the ordinary course of business,” and make it incumbent upon each individual employee and council member to determine whether a particular e-mail is a public record per the CPRA, and if so, save it in a different folder.  The city is using the “draft” language because the CPRA makes an exception for “preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure.”  Of course, an e-mail message in no way meets the definition of “draft,” much less as outlined by California Supreme Court precedent on the matter.  Moreover, the city’s definition of what constitutes a public record is much narrower than that of the CPRA itself (see the City Council’s Draft Guidelines Regarding the Use of City Electronic Communications), which makes it likely that city staff and council will not save many e-mails that are public records under the CPRA.

San Leandro is by no means the first California city to have adopted a policy like this.  The city of Coronado adopted a similar policy in 2000 and landed a nice lawsuit that led it to change its procedure.  Monterey gave it a go in 2005, resulting in yet another lawsuit and a $110,000 attorney fees award for the lawyer who challenged the policy.  Still, this issue has not yet risen to the Appellate level and San Leandro may be willing to take the gamble that it won’t. It would not be the first time that the city took a risky legal position for no good reason.

It’s impossible to know how much making this amendment will cost the city, though I will note that the CPRA requires a court to award attorneys fees to a prevailing plaintiff – thus the $110K attorney fees judgment in the Monterey case.   This also means that a plaintiff is more likely to be able to find a pro-bono lawyer, knowing that they will eventually get paid.

From a practical point of view, this new policy is also likely to backfire.  Knowing that the City will automatically destroy all e-mail evidence  after 120 days, anyone interested in keeping an eye on what’s going on in the city could just do a CPRA request for all e-mails stored in all city computers every couple of months.  They could then just dump the data into a public website and people could search through it at their pleasure.  This, of course, would mean that rather than responding to occasional CPRA requests and gathering a limited amount of records, city staff would be burdened with regular CPRA requests that require gathering lots of records.  This doesn’t seem like good use for city staff time.

We can speculate as to what is prompting City staff to push for this policy change at this time.  It’s difficult to not believe that fear of having controversial information disclosed is not at the heart of it.  If so, it’s quite lamentable.