Destruction of Public Records
Q: I’m a real estate attorney who is also a volunteer at a school district. Here is my immediate dilemma in a nutshell:
Last night, the School Board acted on an agenda item to cease recording future closed sessions of their governing board. When the question was raised as to what would become of the existing audio tapes of closed sessions, the Board President announced that they would be immediately destroyed concurrent with the vote to stop recording future sessions.
Aside from the obvious Brown Act violation in that it wasn’t agendized, do you know the rules on retention and destruction of government records and, specifically, the limits on destroying tapes of closed sessions (These are the only existing records of these sessions).
A: The Brown Act does not require legislative bodies of local agencies to keep minutes of meetings or to tape their meetings. And, even if they choose to do so, it is unclear the extent of a local agency’s obligation to retain such minutes, agendas, and other records of closed meetings.
Although the Brown Act provides that tapes of open meetings “may be erased or destroyed 30 days after the taping or recording” (Govt. Code Section 54953.5; Govt. Code Section 11124.1(b)), this provision only addresses the taping of open (not closed) meetings. Unfortunately, no other provision in the Brown Act or the Public Records Act addresses a local agency’s obligation to retain minutes, agendas, and other records of meetings. See 64 Op. Atty. Gen. Cal. 317 (1981) (“Nothing in the Public Records Act purports to govern destruction of records … Its sole function is to provide for disclosure.”). Moreover, it is not always clear what destruction of records is permissible under other provisions of California law.
Section 34090 of the Government Code provides for the lawful destruction of city records in certain circumstances:
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.
Section 34090.5 further provides that:
Notwithstanding the provisions of Section 34090, the city officer having custody of public records, documents, instruments, books, and papers, may, without the approval of the legislative body or the written consent of the city attorney, cause to be destroyed any or all of the records, documents, instruments, books, and papers, if all of the following conditions are complied with:
(a) The record, paper, or document is photographed, microphotographed, reproduced by electronically recorded video images on magnetic surfaces, recorded in the electronic data processing system, recorded on optical disk, reproduced on film or any other medium that is a trusted system and that does not permit additions, deletions, or changes to the original document, or reproduced on film, optical disk, or any other medium in compliance with Section 12168.7 for recording of permanent records or nonpermanent records.
(b) The device used to reproduce the record, paper, or document on film, optical disk, or any other medium is one which accurately and legibly reproduces the original thereof in all details and that does not permit additions, deletions, or changes to the original document images.
(c) The photographs, microphotographs, or other reproductions on film, optical disk, or any other medium are made as accessible for public reference as the original records were.
(d) A true copy of archival quality of the film, optical disk, or any other medium reproductions shall be kept in a safe and separate place for security purposes.
However, no page of any record, paper, or document shall be destroyed if any page cannot be reproduced on film with full legibility. Every unreproducible page shall be permanently preserved in a manner that will afford easy reference. For the purposes of this section, every reproduction shall be deemed to be an original record and a transcript,
exemplification, or certified copy of any reproduction shall be deemed to be a transcript, exemplification, or certified copy, as the case may be, of the original.
Finally, Government Code Section 6200 provides that:
Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.