Expert: Email policy raises red flags

March 28, 2013 

  • ABOUT THE REPORTER
    alternate text Kevin Valine
    Title: Reporter
    Coverage areas: City of Modesto and nonprofits
    Bio: Kevin Valine has been a copy editor and reporter at The Bee since January 2006. He's worked at the Reno Gazette-Journal, Sarasota (Fla.) Herald-Tribune and Paradise Post as a reporter and copy editor. He's a graduate of San Jose State.
    Recent stories written by Kevin
    E-mail: kvaline@modbee.com

— Emails are not records of conversations or other information sent from one person to another. Instead, they are primarily a method of transmitting data.

That’s how Modesto defines emails and is why its computer system automatically deletes them after 30 days. It’s also why a Sacramento attorney filed court papers in Stanislaus County Superior Court against the city last week, claiming the city’s email policy violates the California Public Records Act.

The Public Records Act governs what information local governments must release to the public. The act is important because it’s how the public can learn how much a city is spending on outside attorneys to defend itself in a lawsuit, how much a city has spent on overtime or what it paid to settle a claim filed against it.

Modesto officials say that while their computers automatically delete emails after 30 days that doesn’t mean the information is gone for good. The city says employees make paper or electronic copies of emails they need to conduct official business. The copies are available through the Public Records Act. Emails that are trivial, such as one staffer inviting another to lunch, are not copied.

But Modesto’s policy does not pass muster with Peter Scheer, executive director of the First Amendment Coalition. He said the Public Record Acts considers emails as public records that are just as tangible as a letter, memo or other document. There is nothing in act that defines emails as a method of transmission.

“It’s the wrong interpretation of the law,” Scheer said about Modesto’s policy. “There is no reason to delete emails.” He said making copies before deleting emails complies with the Public Records Act but is problematic because it lets city officials decide what is a public record and what isn’t.

“Many of the emails that are being deleted are not just about trivial matters about where to go to lunch but about local government business,” Scheer said.

“There will be documents a city doesn’t particularly want to keep. One reason they don’t want to keep it is it might say something they don’t want to the public to know.”

Sacramento attorney Kelly Smith filed court papers against the city after he said he was not able to get the records he needs to represent a Modesto couple fighting an eminent domain case the city filed against them. (A city uses eminent domain to acquire private property for a public good from an unwilling seller. In this case, the city wants land to widen a stretch of Roselle Avenue.)

City Attorney Susana Alcala Wood has denied Smith’s claims and has said the city has complied with his requests for records.

Smith has 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.

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