Copyright 2005, North County Times

Questions raised on government policies for retaining and deleting email

(North County Times 3/5/05) -- Routine City Council business became thorny at a meeting last month, when a resident demanded an explanation of the city's policy for retaining e-mails.

Kevin Cummins didn't get an answer. There really wasn't one to give.

A stumped City Council turned to its attorney, Glenn Sabine, who said there was no easy answer. He said he could respond to Cummins' question in a confidential memo to the mayor.

The memo would be protected by attorney-client privilege, Sabine said Thursday.

"This is a great time to address a loophole in your policy," Cummins told the council at its Feb. 23 meeting. "How long do you keep your e-mails, and why not add e-mail to your records-retention schedule?"

Cummins made his remarks as the City Council approved the destruction of boxes and boxes of records, including letters at least two years old.

Also approved for the shredder were bid documents for projects long completed, bank statements, quarterly financial reports, work orders, fuel logs and any number of other records.

The city's retention policy sets a two-year limit to the permanent schedule for the keeping of records.

Most letters to the City Council are copied, distributed to all five members, logged and kept chronologically for two years, City Clerk Deborah Cervone said last week. In most cases, those letters are subject to disclosure under the California Public Records Act.

No retention policy exists for e-mails, she said.

"I get e-mail from all over the world, from the guy who wants to ship $23 million across the world to the guy who wants to help me with my physical prowess," Councilman James Bond told his colleagues at the meeting. "How do we know which ones to keep?"

Bond told his colleagues he receives an average of 1,300 e-mails a month, and most of them are garbage.

The memos eventually gobble up the storage space allotted to his e-mail account, Bond said, so he deletes most of them every 60 days.

Laws that cover the retention and deletion of e-mails remain unwritten, two First Amendment advocates said in interviews last week.

Laws, and government in general, have not kept pace with regulating e-mail, especially as the volume of junk memos ---- or spam ---- increases, said Peter Scheer, executive director of the California First Amendment Coalition.

"There's no question that e-mail can be a document under the Public Records Act," Scheer said. "The Public Records Act doesn't draw distinctions between documents that are pink or white or made of electrons. They're all just documents. What creates an issue is that we delete a lot of stuff."

Some laws treat the destruction of printed documents as criminal offenses.

Scheer said he knows of court battles over allegedly deleted e-mails ---- many of them between contesting political candidates ---- but the cases were never resolved.

Government agencies would be well advised to develop retention policies that apply specifically to e-mails, he said, "so everyone knows what's kosher and what's not. Most agencies are just now realizing they have a problem."

Most e-mails would be subject to disclosure if their contents influence or inform decisions on public policy, said Jim Ewert, staff attorney for the California Newspaper Publishers Association.

"The big question is, has that record been retained?" he said. "Once an official hits that 'delete' key, it has not."

Ewert said he did not know of any case law or pending legislation that addresses the retention and deletion of e-mails.

In Encinitas, the City Council unexpectedly debated the handling of e-mails for about 10 minutes last month but gave no formal direction to its staff to draft a policy or return with more information.

The Web pages of Carlsbad, Del Mar and Solana Beach don't offer individual e-mail addresses for council members; City Council members can be e-mailed individually in Escondido, Oceanside, San Marcos and Vista.

By Adam Kay