Modesto reaches accord over its email policy

10/25/2013 8:17 PM

10/25/2013 11:47 PM

Modesto will continue to work on updating its email retention policy and expanding its computer storage in order to keep emails for as long as two years. The agreement is part of a legal settlement with a Modesto couple who challenged the city’s policy of automatically deleting emails after 30 days.

The settlement was reached this month in Stanislaus County Superior Court.

Sacramento attorney Kelly Smith filed court papers in March on behalf of Modesto husband and wife Dan Nickles and Kim Kuppens, claiming the city’s email policy violated the California Public Records Act, a contention city officials denied.

The act governs what information local governments must release to the public. It’s important because it’s how the public can learn how much a a city has spent on overtime, construction projects and other matters.

Smith filed the court papers against the city after he said he was not able to get the city emails he needed to represent Nickles and Kuppens, who were fighting an eminent domain case the city filed against Kuppens.

A city uses eminent domain to acquire private property for a public good from an unwilling seller. In this case, the city wanted land to widen a stretch of Roselle Avenue.

Modesto officials have said that while their computer system automatically deletes 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 for 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.

Modesto policy defines emails as “primarily for transmission of data and not storage.”

That drew criticism from California Public Records Act advocates who said the act considers emails public records that are just as tangible as any other document. They also said while making copies of emails complies with the act, the practice is problematic because it lets city officials decide what is a public record.

City officials also have said they do not have the computer storage to keep emails for two years.

The stipulated judgment states:

•  Modesto will continue to work on updating its email retention policy, taking into consideration comments from Smith and media attorney Karl Olson, who represented The Bee in this action.
•  Modesto will continue its efforts to implement a computer storage system that will keep emails for as long as two years.
•  During the budget hearings for the 2014-15 fiscal year, which starts July 1, Information Technology Director Bryan Sastokas will request from the City Council the funding needed to increase computer storage.
•  Modesto will pay $1,500 toward Smith’s court costs. (City Attorney Susana Alcala Wood said Modesto paid outside attorneys $46,678 for legal assistance in this case.)

The stipulated judgment says nothing in it “shall in any way diminish the City Council’s discretion regarding the matters addressed herein.”

“We wanted certainty that it will be implemented, but they (the city) weren’t able to do that because of their budget realities,” Smith said. “So what we got is this. What we got from them is a road map for them to implement what they should do.”

Wood praised the professionalism of all of the attorneys in reaching an amicable conclusion. She said she appreciated that Smith and Olson came to understand the city’s willingness to upgrade its computer storage but inability to do so because of a lack of funding.

“This resolution is a good one for the city,” she wrote in an email, “because in addition to an end to the litigation, it allows the city to continue to move forward in the direction that staff would like to take it – namely into the electronic 21st century, including the day where having the capacity to store city email indefinitely is the standard.”

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