Destruction of Memos by the Police Department
Q: Our chief of police surveyed the officers of his department then summarized their responses in a memo to the city manager. Then the survey responses were destroyed. The responses were much less than two years old, and were submitted by the officers anonymously, so no survey response can be traced to an individual officer. The survey asked the officers about the operations of the department. Was destruction of the survey responses legal?
A: As it sounds like you’re already aware, California Government Code section 34090 requires the retention of city records less than two years old. After that time period (and unless the records are required to be kept by statute), the head of the police department may destroy city records only with the approval of the legislative body and written consent of the city attorney. The full text of Section 34090 provides as follows:
Unless otherwise provided by law, with the approval of the legislative body by resolution and the written consent of the city attorney the head of a city department may destroy any city record, document, instrument, book or paper, under his charge, without making a copy thereof, after the same is no longer required.
This section does not authorize the destruction of:
(a) Records affecting the title to real property or liens thereon.
(b) Court records.
(c) Records required to be kept by statute.
(d) Records less than two years old.
(e) The minutes, ordinances, or resolutions of the legislative body or
of a city board or commission.
This section shall not be construed as limiting or qualifying in any manner the authority provided in Section 34090.5 for the destruction of records, documents, instruments, books and papers in accordance with the procedure therein prescribed.
California Government Code section 34090.5 allows for the destruction of records without approval of the legislative body or written consent of the city attorney if copies that satisfy the requirements of Section 34090.5(a)-(d) are complied with (for example, such as the requirement that the copies accurately and legibly reproduce the original, the copies be kept in a safe and separate place, etc.).
I am not aware of any exemption for the records at issue in your email. Based on the information you have provided, it sounds as though the destruction of the records at issue may not have been in compliance with Government Code section 34090.