Destruction of Council Office Files

Answer

The following may be useful as background regarding the “purging” of documents by an outgoing city councilmember.  Unfortunately, it is not always clear what destruction of records is permissible under 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, orsecrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.
And Section 6201 provides that “[e]very person not an officer referred to in Section 6200, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the state prison, or in a county jail not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or by both such fine and imprisonment.”  The enumeration of civil executive officers in Cal. Govt. Code Section 1000 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,” which would seem to include a city councilmember.

It may be that the city councilmember’s assertion that “important” documents are duplicated in other city files means, in effect, that the only documents that would be subject to state and local laws governing document destruction are preserved in accordance with Section 34090.5.  A California Attorney General opinion from 1981, 64 Op. Atty. Gen. Cal. 317, features a discussion of state and local regulations on public record destruction but does not offer any definitive answers to the questions you have posed.  As a practical matter, as you point out, the situation described below illustrates the difficulty of determining whether particular documents to be destroyed are, in fact, required to be preserved (including whether their likely duplication elsewhere in government files justifies their destruction).  This is probably where local ordinances, rules, and policies come into play.  You mention that the city’s document destruction policy was not followed in this case.  That policy may provide the best guidance as to how the records should have been maintained (or destroyed) and what the effect of an official’s failure to do so is.  Local regulations may provide additional guidance as to the effect of an official’s failure to follow the document destruction policy.