How Long Do Agencies Have to Keep Records?
Q: How long do state agencies have to keep records? The Department of Fish and Game tells us they destroyed the records we wanted because they are over 4 years old.
A: Nothing in the California Public Records Act (“PRA”) addresses a local agency’s obligation to retain records. 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.”). Instead, an agency’s obligation to retain records are addressed by a variety of record retention laws.
For example, 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.
Based on the information you provided, it does not appear that the records you seek would fall under these provisions, but it depends whether the specific records you seek are covered by the code provisions cited above. Turning back to the PRA, in the event of an improper denial of access to records, the ultimate recourse is to initiate litigation, in the form of a proceeding for injunctive or declarative relief, or a writ of mandate. See Cal Gov’t Code Section 6258. When a petition is filed, “the court shall order the officer or person charged with withholding the records to disclose the public record or show cause why he or she should not do so.” Cal Gov’t Code Section 6259(a). The PRA also provides that prevailing parties in a PRA litigation be awarded their attorneys’ fees. Govt. Code § 6259(d) (“The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.”).
I am not aware of any reported court case in which a person brought an action under the PRA after an agency destroyed requested records. As explained above, the PRA does itself protect against the destruction of records, but if the documents are being improperly withheld on some other basis, such an action might be appropriate.