The Public Records Act, along with the Brown Act, are the two most important state statutes that are supposed to provide open and transparent government from local city councils, boards, and other agencies. Mission Viejo needs to review its document retention policy to determine whether it is being as transparent as possible.
On October 24, 2013, Mission Viejo resident Larry Gilbert made a simple Public Records Act request for all communications between Dennis Wilberg, the Mission Viejo City Manager, and the city managers of Laguna Hills, Laguna Niguel, San Juan Capistrano and San Clemente regarding Gilbert and the Community Common Sense newspaper from August 1, 2013 to the date of the request. Gilbert knew Wilberg had sent an email on September 12, 2013 to the San Juan Capistrano City Manager referencing Gilbert and Common Sense because he had received a copy of it from a friend. However, even though Gilbert made the request just over 40 days after Wilberg sent the email, the City responded that it had no documents responsive to Gilbert’s request. At the December 2, 2013 City Council meeting, when pressed by Gilbert about his request, Wilberg stated that he had deleted the email so it was no longer available for production.
Given the proliferation of email accounts among local elected officials and staff, the issue of email retention has become increasingly important. In late 2011/early 2012, an Anaheim Planning Director told staff, under the threat of disciplinary action, to delete old documents and electronic files. Earlier this year, a Modesto attorney sued to stop the city from automatically deleting emails that were more than 30 days old. Open-government advocates are alarmed at the short duration that some local agencies keep emails before purging them.
As these and other cases demonstrate, cities and other local agencies struggle to balance the need for public transparency with the need to maintain their records in an efficient manner. While state law does not state how long emails should be retained, it does require many records be maintained for two years. Moreover, many open-government advocates assert that purging after 30 days is neither required by law, nor in the spirit of guaranteeing the most open and transparent government possible.
I asked all five Mission Viejo council members to provide me with the city’s document retention policy, as well as whether the city had done any analysis of the cost of keeping emails longer than 30 days. I only received a response from two council members. Rhonda Reardon stated, “we need to take a good hard look at our email retention policy. The questions you raised are good questions and will be the basis for our discussion on our communication retention policy in 2014.” Cathy Schlicht stated that she not aware of any city-wide purge system in place for emails, and that when she was assigned her email account she was told never to delete emails. Schlicht said that she only deletes the non-city addressed emails from various organizations and some staff emails on items such personal holiday greetings, out of office responses, as well as the City’s newsletters. Schlicht keeps all official communications between herself and staff, as well as email exchanges between council members and the public, and between council members themselves. Schlicht maintains that she has her emails back to 2008 when she was elected to the City Council.
It appears that there is a disconnect between what Schlicht was told (never to delete emails) and what Wilberg did (delete an email within 40 days of receiving it). It is this type of disconnect that raises the real possibility that important (or incriminating) documents are being deleted, and that is why Mission Viejo, as well as all other Orange County cities, needs to review its public document retention policies and ensure that its efforts err on the side of the public and open government.