An attorney claims Modesto is violating the state's public records law because the city's computers automatically purge emails once they are 30 days old.
Sacramento attorney Kelly T. Smith filed papers Friday in Stanislaus County Superior Court, asking a judge to order the city to stop deleting emails and revise its policies to come into compliance with the California Public Records Act.
The act requires local governments to make most of their records — such as settlement agreements to lawsuits and claims filed against them — available to the public for inspection and copying.
Friday's legal action is related to an eminent domain case in which Smith represents a Modesto property owner who does not want to sell her land for the price the city is willing to pay.
Cities use eminent domain to acquire private property from an unwilling seller for a public good, in this case widening a northbound stretch of Roselle Avenue from Floyd to Sylvan avenues from one to two lanes to alleviate a traffic bottleneck.
Modesto wants to buy a 6-foot strip running the length of the 304 feet of Kimberly Kuppens' property that fronts Roselle. Kuppens and her companion, Dan Nickles, live on about 14 acres with pasture and animals. They are surrounded by single-family homes.
The city filed its eminent domain action against Kuppens in May 2011; a jury trial is scheduled for August to resolve the case.
Smith said the city and its attorneys stonewalled his efforts to obtain records he needs to represent Kuppens in the eminent domain case. Smith then used the Public Records Act to access the records.
City Attorney Susana Alcala Wood said the city and its attorneys have complied with all of Smith's requests for information and have cooperated fully with him.
"We take the (Public Records Act) very seriously," she said.
Wood said she believes Smith filed court papers against the city Friday to gain more money for his client in the eminent domain proceeding. "He's being a lawyer and being a zealous advocate for his client," she said.
She said the city does purge emails once they are 30 days old because it does not have the computer storage to keep them. Wood said the city treats the emails as public records during their 30-day life.
And not all emails are gone for good. She said staff will print important emails and retain them with other documents or keep them by converting them into another electronic format, such as a PDF file. She said those records are available through the Public Records Act.
Kelly said he might believe the city needed to purge emails to free computer space if this were the 1980s. Computer storage today is abundant and cheap, he said.
"I think they are hiding behind this destruction policy as a way to evade public records requests," he said.
Peter Scheer, executive director of the First Amendment Coalition, said the Public Records Act clearly states emails are public records. But the act does not say how long agencies must retain them and other public records.
But Scheer agrees with Smith that 30 days is not sufficient. Scheer said a state law says public records should be retained for at least two years.
He said permanently deleting emails after 30 days is common among California cities and counties, though there is no legal basis for it.
Smith said he expects to be in court in April to ask a judge to issue an injunction against Modesto that would bar the city from purging emails after 30 days. He's also asking for a declaration from the court that the city's email policy violates the Public Records Act.
"The act says they are writings and have to be retained," he said. "They are as much a record as a memo or a report or a letter. The fact that they destroyed them in the past prejudices my clients. They are lost for good."
Bee staff writer Kevin Valine can be reached at kvaline@modbee.com or (209) 578-2316.
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