Email Correspondance Records
Q: The city currently deletes all e-mail from the servers after 90 days. Only records saved by the employee are kept in a privately maintained “.pst” file on the employees hard drive. How long must the city maintain e-mail records, especially elected officials who discuss employee or departmental actions, concerns or opinions? I know the Mayor criticized my actions as an employee to the fire chief, and the fire chief showed me the e-mail record, but would not give me a hard copy. The city now denies such an e-mail record exist. What are my options in obtaining all e-mail correspondence discussing the employee or department responsibilities under the public records act?
A: The California Public Records Act (“PRA”) generally requires state and local agencies, including cities, to allow members of the public to inspect records in their custody and obtain copies of those records, unless one of the PRA’s specific exemptions applies. As a general rule, e-mails are treated as written documents subject to disclosure under the California Public Records Act (PRA). See San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School District, 139 Cal. App. 4th 1356, 1411 (2006). Based on the information you provide, I cannot say for certain whether an exemption to disclosure applies, although there are several that may apply depending on the particular circumstances.
I would suggest that you submit a written PRA request for the records you seek. A properly framed PRA request may lead to the information you seek even if the e-mail records in question have been destroyed (i.e., if the information is contained in a separate document that is otherwise subject to disclosure under the PRA). The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. Cal. Gov’t Code § 6253. If the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. Cal. Gov’t code § 6255. A sample PRA request letter can be found on the CFAC web site at the following link: http://www.cfac.org/templates/cpraletter.html.
As to the length of time the city must retain e-mails, the PRA does not prevent state or local agencies from destroying public records. (In fact, the PRA implicitly acknowledges that agencies do not retain records indefinitely. See Cal. Gov’t Code section 6254(a)). However, you should be aware of California Government Code section 34090, which governs the destruction of records by cities. That section generally requires cities to retain records that are less than two years old, although I am unaware of any authority applying this law in the context of a city policy providing for automatic deletion of e-mails from city servers. The full text of Section 34090 can be found by following this link: http://caselaw.lp.findlaw.com/cacodes/gov/34090-34093.html Note also that “willful” destruction of public records is punishable as a crime under certain circumstances. See Cal Gov’t. Code 6200, which can be reviewed by following this link: http://caselaw.lp.findlaw.com/cacodes/gov/6200-6203.html