Q: Our local, university-run public radio station, has been attempting to create a “confidentiality policy” to prevent entries in its online volunteer listserv from appearing in the newspaper. Because I believe the taxpayer-funded listserv content is a public document, I filed a PRA request for one day’s worth of postings. The university has replied that it keeps no copies of the listserv postings, and cannot provide them. They seem to have acknowledged that the listserv content is a public document. Aren’t they obliged to retain public records for a time?
A: Destruction of public records is governed by Cal. Government Code Section 6200, which specifies 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.”
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.”
With respect to determining whether an individual is an “officer” for purposes of Section 6200, Cal. Govt. Code Section 1000 enumerates civil executive officers and includes “such other officers as fill offices created by or under the authority of charters or laws for the government of counties and cities or of the health, school, election, road, or revenue laws.”
With respect to whether the listserv postings at issue are “records” within the meaning of Section 6200, a California Attorney General opinion from 1981 concludes that a “record” within the meaning of Section 6200 means “a thing which constitutes an objective lasting indication of a writing, event or other information, which is in the custody of a public officer and is kept either (1) because a law requires it to be kept or (2) because it is necessary or convenient to the discharge of the public officer’s duties and was made or retained for the purpose of preserving its informational content for future reference.” 64 Ops. Cal. Atty. Gen. 317. Whether the listserv postings in question would fall under this definition might depend on the nature of the listserv. In the 1981 AG opinion, which concerned a tape recording of a city council meeting, the attorney general said the outcome depended on the purpose for which the tape recording was made — i.e., was it retained solely for the purpose of preparing minutes of the meeting, or was it prepared for the additional purpose of preserving its informational content for public reference?