Date of Hearing: March 10, 2020

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2093

Author:(Gloria) – As Introduced Ver:February 5, 2020

SUBJECT: Public records: writing transmitted by electronic mail: retention

KEY ISSUE: SHOULD PUBLIC AGENCIES BE REQUIRED BY LAW TO RETAIN EMAILS RELATING TO THE PUBLIC’S BUSINESS FOR AT LEAST TWO YEARS, UNLESS ANOTHER STATUTE, REGULATION, OR RULE REQUIRES RETENTION FOR A LONGER PERIOD?

SYNOPSIS

The California Public Records Act (CPRA) requires public agencies to make public records in their possession available for inspection, unless a provision of the CPRA or another statute exempts the record from disclosure. However, the CPRA only requires public agencies to disclose records relating to the public’s business that are in their possession; it says nothing about how long an agency must keep those documents in their possession. While the CPRA does not address retention issues, there are about thirty retention statutes that appear elsewhere in the Government Code. Retention requirements vary depending upon the nature of the record. While outside of the CPRA proper, these retention statutes profoundly implicate the CPRA, for public agencies can only disclose what they retain.

This bill addresses the question of how long public agencies must retain electronic writings or emails. Government Code Section 34090 prohibits city departments from destroying public records that are less than two years old. However, as detailed in the analysis, some local governments claim that emails are not subject to the two-year retention requirement. The confusion appears to stem from the fact that while the CPRA defines a public record to include email, the several retention statutes do not do so expressly. This bill seeks consistency between the CPRA, which deals with the disclosure of public records, and other provisions of the Government Code that deal with the retention of public records. Specifically, the bill would require a public agency to retain for at least two years any electronic writings relating to the conduct of the public’s business, unless another statute or regulation requires retention for a longer period. In short, if a writing pertains to the people’s business, the retention period is the same whether the writing is paper or electronic. The key issue for purposes of disclosure and retention, therefore, is the content of the writing, rather than the form.

This bill is virtually identical to AB 1184, which passed out of this committee last year. However, the Governor vetoed that bill, contending that the costs of reviewing and storing emails, many of which have no relevance to the conduct of the public’s business, outweighs any benefit of added transparency. Local government agencies continue to oppose this measure for the same reason. The bill is supported by advocates of greater government transparency.

SUMMARY: Requires a public agency to retain and preserve for at least two years every writing containing information relating to the conduct of the public's business that is prepared, owned, or used by the public agency and transmitted by electronic mail, unless a statute or regulation, or a rule established by the Secretary of State pursuant to the State Records Management Act, requires a longer retention period.

EXISTING LAW:

1. Requires, under the California Public Records Act (CPRA), that public records be open for inspection and copying at all times during the office hours of the state or local agency and provides that every person may inspect any public record, unless a specific statute exempts the record from public disclosure. (Government Code Sections 6253 and 6254.)
2. Defines “public records” for CPRA purposes to include any writing containing information relating to the conduct of the public’s business that is prepared, owned, used, or retained by any state or local agency, regardless of physical form or characteristics. Defines a “writing” to include any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored. (Government Code Section 6252 (e) and (g).)
3. Authorizes, unless otherwise provided by law, the head of a city department to destroy any city record, document, instrument, book, or paper, under the department head’s charge, without making a copy thereof, after the same is no longer required. Specifies, however, that this does not authorize the destruction of any record affecting title to real property or liens thereon, court records, records required to be kept by statute, records less than two years old, and the minutes, ordinances, or resolutions of the legislative body or of a city board or commission. (Government Code Section 34090.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: The California Public Records Act requires public agencies to make any public records in their possession available for inspection unless a provision of the CPRA or another statute exempts the record from public disclosure. However, the CPRA only requires public agencies to disclose records relating to the public’s business that are in their possession; it says nothing about how long public agencies must keep those documents in their possession, or when or under what circumstances they may destroy them. However, while the CPRA does not address retention issues, there are dozens of retention statutes found elsewhere in the Government Code. Retention requirements vary depending upon the nature of the record. While falling outside of the CPRA proper, these retention statutes nonetheless profoundly implicate the CPRA, because public agencies can only disclose the records which they retain. (Note: Some commentators call “retention” statutes “destruction” statutes, in that they authorize agencies to destroy records, but only after a certain period. The analysis uses “retention” to refer to both.)

This bill addresses the question of how long public agencies must retain electronic writings, or emails. Government Code Section 34090 currently prohibits city departments from destroying any public records that are less than two years old. By expressly declaring that electronic writings are public records subject to the two year retention rule, this bill seeks consistency between the CPRA, which defines public records to include electronic mail, and the provisions of the several retention statutes that do not expressly include electronic writings. Specifically, the bill would require a public agency to retain for at least two years any electronic writings relating to the conduct of the public’s business, unless a statute, regulation, or a rule established by the Secretary of State requires a longer retention period. In short, if a writing pertains to the people’s business, the retention period is the same whether the writing is paper or digital. However, as detailed in the analysis, some local public agencies claim that emails are not subject to the two-year retention requirement. The confusion appears to stem from the fact that while the CPRA expressly defines a public record to include electronic writings, the retention statutes do not.

Do retention statutes already cover electronic writings? While the CPRA expressly defines “public records” to include electronic writings, the several retention statutes in the Government Code remain silent on this. For example, Government Code Section 34090 et seq. prohibits city departments from destroying any “records less than two years old,” unless the department maintains a duplicate copy. Neither the Article nor the Title in which this section appears defines “records.” Apparently, a number of California cities have concluded that the “records” referred to in Section 34090, unlike the definition of “public records” in CPRA, does not apply to emails. For example, the nonprofit news organization Voice of San Diego surveyed several cities in San Diego County and found that many cities assume that the two-year retention rule does not apply to emails, with at least two cities (Encinitas and Poway) deleting emails after only 30 days. (“These Cities Can Hardly Wait to Delete Their Records,” March 20, 2018, at www.voiceofsandiego.org.) Some of the cities that Voice of San Diego surveyed believed that the emails did not qualify as disclosable public records because they were “preliminary drafts,” or internal memoranda otherwise not subject to disclosure under CPRA. However, the cities’ reasoning confuses the definition of a public record (which includes any writing relating to the conduct of the public’s business) with documents that must be disclosed pursuant to a public records request. The retention statutes require agencies to maintain paper records that relate to the public’s business for two years, even though such documents may be exempt from disclosure under the CPRA. In other words, a “public record” and a “disclosable public record” are not necessarily the same thing.

This bill seeks to ensure meaningful access to public records by clarifying that public agencies must retain emails relating to the public’s business for at least two years, in the same manner that they are required to retain paper records. Under this proposed measure, therefore, if emails are in fact preliminary drafts, or qualify for some other exception, the city may not need to disclose them, but it must retain them if they relate to the conduct of the public’s business. One reason for requiring agencies to retain such records for a minimum period, after all, is to ensure that they are available if relevant to a public records request at some point in the future. As the author points out, email has become one of the primary means by which public servants conduct their work and communicate with one another. This trend is why, sixteen years ago, the Legislature amended the definition of “public record” to specify that a “writing,” for purposes of the CPRA, included electronic writings. (AB 1933, Chap. 937, Stats. 2004.)

Some courts have already moved in the direction of applying retention statutes to emails. For example, last year the San Diego Superior Court issued a stipulated order that authorized the San Diego Unified School District (SDUSD) to delete non-archived emails in SDUSD employee’s Outlook boxes, with the proviso, however, that “the procedure shall be modified so that only emails that are older than two years at the time of deletion may be automatically deleted.” (Voice of San Diego v. San Diego Unified School District (Case No. 37-2018-00026433-CU-WM-CTL, May 30, 2018, p. 2.) However, like any stipulated order, the order of the San Diego Superior Court, while premised on the assumption that emails were subject to retention statutes, only applied to the parties in that particular case. This bill will make it clear that because emails are potentially public records subject to disclosure under the CPRA, they logically should also be subject to retention statutes since they necessarily effect the operation of the CPRA.

Governor’s veto of AB 1184. In his veto message on last year’s AB 1184, the final version of which was identical to this measure, Governor Newsom wrote:

This bill does not strike the appropriate balance between the benefits of greater transparency through the public's access to public records, and the burdens of a dramatic increase in records-retention requirements, including associated personnel and data-management costs to taxpayer.

Storage and retrieval costs. The author and supporters of this bill counter the Governor’s veto message by contending that electronic storage costs are not substantial. For example, the Los Angeles Sunshine Coalition points out that Google email systems offer unlimited email and file storage starting at $12 per month, and Microsoft’s comparably priced system offers free archiving of emails with no size limit. The Coalition claims that most public agencies already use one or the other of these systems, and as such they “are already paying for sufficient storage.” While the Committee has no independent knowledge of the systems most agencies use, or their associated storage or archiving costs, it is difficult to imagine that storage costs for electronic records are greater than storage costs for paper records. Certainly electronic records require less space.

Opponents of the bill, however, quite reasonably counter that agencies will face added retrieval costs, as well as added storage costs. Should this bill become law, some opponents claim that, when responding to a public records request, agency staff will need to review a massive volume of archived emails – including spam and emails with no significance to the conduct of the public’s business – in order to determine which of the many emails are responsive to the request. Even if storage costs are relatively inexpensive, that is, hiring attorneys to review a large trove of emails to determine if they are responsive to a request and subject to disclosure will engender considerable expense. Opponents also point out that, since the passage of Proposition 42 in 2014, local governments are no longer reimbursed for the costs of fulfilling requests under the CPRA. Placing the provisions of this retention bill within the CPRA, therefore, means that local governments cannot seek state reimbursement for the additional costs required to comply with the bill.

Which emails are “public records?” In response to opposition concerns about cost, the author’s background sheet claims that agencies will not be required to retain all emails, but only those which meet the definition of a “public record.” CPRA defines a public record to include “any writing containing information relating to the conduct of the public’s business.” (Government Code Section 625 2(e).) The author writes that unsolicited spam, or personal emails “asking a partner to pick up bread or inviting a colleague to lunch” would not constitute a public record relating to the public’s business, and thus would not need to be retained. However, not all emails fall neatly within or outside of the category of the “public’s business.” To be sure, an email between co-workers about where to have lunch might not relate to the public’s business, but an agency head’s lunch dates with lobbyists or regulated businesses might be relevant to the public’s business. Determining which of the many emails received or created relate to the public’s business, and which do not, may require considerable staff time. It may be easier, at least at the front end, for the agency to archive all emails for two years. If this is done, however, it will mean more emails to sort through when responding to a public records request. In either case, staff may need to review and make determinations about the content of each email in order to determine whether it is responsive to a request and subject to disclosure.

Conclusion. Like so many of the bills that amend or implicate the CPRA, this measure requires a balancing of competing interests. On the one hand, we do not want to make financially-strapped public agencies spend more staff time and limited funds responding to CPRA requests. On the other hand, the CPRA reflects the important principle that government transparency is essential in a democracy. The CPRA and its legislative history reveal a longstanding policy in favor of transparency, even when this policy potentially conflicts with other important values, including, among others, personal privacy and the efficient and effective operation of public agencies. Relatedly, our existing retention statutes require agencies to retain public records for specified periods so that they are available for public inspection. In light of the interacting purposes of the CPRA and the retention statutes, the Committee does not see why electronic writings should be treated any differently than writings preserved on paper. In short, for purposes of the CPRA and retention statutes, the key question is not about the form of the writing; rather, the key question is whether the content of the writing relates to the conduct of the public’s business. Both electronic and paper writings can do that. If there is a need to narrow the volume of writings that an agency must retain, then perhaps that narrowing should be based upon the relevance of its content, as opposed to format, which has no relevance to whether or not the writing is related to the conduct of the public’s business.

ARGUMENTS IN SUPPORT: According to the author, even though existing law “requires cities to keep emails for a minimum of two years,” recent reports by advocacy groups and the press show that many local governments “have established policies that result in cities like Encinitas and Poway deleting emails after 30 days.” The author points out that in 2019, “emails are the primary way public servants conduct their work and as it stands today, many of these emails [are] automatically purged and therefore unavailable for pending or future Public Records Act Requests.” The author believes that AB 2093 will ensure “that our public record retention requirements apply appropriately to emails, given their increasing importance in how public agencies conduct their work.”

The First Amendment Coalition (FAC) argues that keeping track of state and local government is an important means of “ensuring the proper functioning of democracy.” More specifically, FAC contends that under existing law “there is too much confusion among government agencies and the public regarding how long email should be retained, and thereby accessible under the CPRA.” FAC believes that extending the two-year retention period to emails will eliminate much of this confusion. “Without this legislation,” FAC contends, “it is too easy for agencies to quickly and routinely destroy records before the public even has a chance to request access to them. AB 2093 is a simple and elegant solution to the confusion created by the patchwork of current law and the wide-spread practice of destroying what may be important public records.”

The Los Angeles Sunshine Coalition (LASC) supports this bill for the reasons stated above. However, LASC also responds to claims by opponents – and reflected in the Governor’s veto message – that “the cost of retention is too high.” LASC contends that most state agencies already use Microsoft or Google email systems that provide low cost or free archiving services. As LSAC writes: “These are the two most popular emails systems used by governments and other public entities, and for neither of them is the amount of storage an important element of the cost. Agencies are already paying for sufficient storage.”

ARGUMENTS IN OPPOSITION: A broad coalition of cities, counties, special districts, and irrigation districts oppose AB 2093, largely because they believe that the bill will create additional costs and burdens without any corresponding increase in transparency. Opponents stress that this bill “creates no new disclosures or exemptions of records,” but is rather a “retention” statute that is placed within the CPRA in order to avoid “the constitutionally-required” process whereby the state is required to reimburse local governments for state-mandated costs. Opponents contend that those costs will be substantial, as public agencies “will be forced to pay for additional storage space as well as hire additional staff to sort through millions of emails that are exempt from disclosure under the CPRA but mandated to be retained under AB 2093.” Without the ability to be reimbursed for these additional costs, the opposition claims, public agencies “will be forced to both raises fees and taxes or cut services to the communities they serve.”

Making matters worse, opponents argue that AB 2093 will raise costs without offering any corresponding increase in transparency. For while the bill “is intended to improve public access to government records, in practice it will merely increase the burdens for both public agencies and CPRA requesters [emphasis added]” because the “vast majority of emails consist of auto-replies, spam, and insignificant routine communications of minimal public interest.” As the “bulk of these emails increases, the burden to search through them and locate responsive records . . . rises accordingly,” thereby preventing the requester from getting the material in a timely manner. Indeed, opponents warn that “the requester may be required to bear the cost of this data extraction – and indiscriminately mandating that emails be retained will thus make CPRA requests more expensive, perversely impeding public access. Moreover, for those costs that cannot be passed on to the requester, the public agency has no source for reimbursement, and must divert funds from other public programs. Compelling public agencies to retain masses of routine emails – which neither the sender not recipient otherwise thought important enough to save – imposes significant burdens on all concerned with minimal public benefit.”

Opponents also point to the Governor’s veto of last year’s identical AB 1184 and quote the Department of Finance (DOF) analysis of that bill. In particular, opponents quote the following from the DOF analysis: “[the] retention of non-pertinent e-mails and the need to search through those e-mails, particularly for less specific CPRA requests, increases the amount of time needed to complete CPRA requests. This makes compliance with the CPRA more difficult . . . and produces worse outcomes for persons and entities submitting those requests.” In short, opponents contend that the costs of the new requirement greatly outweigh the benefits of any minimal increase in transparency.

REGISTERED SUPPORT / OPPOSITION:

Support

California Immigrant Policy Center

First Amendment Coalition

Los Angeles Sunshine Coalition

Oakland Privacy

Oppose

Antelope Valley Mosquito and Vector Control District

Association of California School Administrators

Association of California Healthcare Districts

Association of California Water Agencies

Bear Valley Water District

Beaumont-cherry Valley Water District

Big Pine Cemetery District

Bonita Sunnyside Fire Protection District

Byron Bethany Irrigation District

California Association of Public Authorities for IHSS

California Association of Resource Conservation Districts

California Association of School Business Officials

California Downtown Association

California Municipal Utilities Association

California Special Districts Association

California State Association of Counties

California State Sheriffs' Association

California Valley Community Services District

Cameron Estates Community Services District

City of Lawndale

Coachella Valley Mosquito and Vector Control District

Colma Fire Protection District

Conejo Recreation and Park District

Costa Mesa Sanitary District

Cosumnes Community Services District

Crestline Sanitation District

Cucamonga Valley Water District

Del Puerto Health Care District

Desert Water Agency

Donner Summit Public Utility District

East Niles Community Services District

Eastern Kern County Resource Conservation District

Ebbetts PASS Fire District

El Dorado Irrigation District

Frazier Park Public Utility District

Fresno Metropolitan Flood Control District

Fresno Mosquito and Vector Control District

Fulton-el Camino Recreation and Park District

Georgetown Divide Public Utility District

Georgetown Divide Recreation District

Gold Ridge Resource Conservation District

Golden Hills Community Services District

Goleta Sanitary District

Goshen Community Services District

Grizzly Flats Community Services District

Hayward Area Recreation and Park District

Henry Miller Reclamation District #2131

Herald Fire Protection District

Hilmar County Water District

Home Gardens Sanitary District

Indian Wells Valley Water District

Jamestown Sanitary District

Keyes Fire Protection District

Lake Oroville Area Public Utility District

Lassen Municipal Utility District

League of California Cities

Lebec County Water District

Leucadia Wastewater District

Lindsay-Strathmore Public Cemetery District

Linne Community Services District

Los Osos Community Services District

Madera Cemetery District

Madison Community Services District

Marinwood Community Services District

Mcfarland Recreation and Park District

Mckinleyville Community Services District

Mesa Water District

Mid-peninsula Water District

Modesto Irrigation District

Mojave Air and Space Port

Mojave Desert Air Quality Management District

Monte Rio Recreation and Park District

Monte Vista Water District

Monterey Peninsula Regional Park District

Mountain Counties Water Resources Association

Mountain Meadows Community Services District

Mt. View Sanitary District

Murphys Cemetery District

North County Fire Protection District

North West Kern Resource Conservation District

Northstar Community Services District

Orange County Cemetery District

Orange County Mosquito and Vector Control District

Palmdale Water District

Petaluma Fire Department

Pine Grove Community Services District

Quincy Fire Protection District

Rio Linda Elverta Community Water District

Rodeo Sanitary District

Rosamond Community Services District

Rossmoor-Los Alamitos Area Sewer District

Rowland Water District

Rural County Representatives of California

Russian River Flood Control and Water Conservation Improvement District

Salinas Valley Memorial Healthcare System

San Ramon Valley Fire Protection District

Santa Clara Valley Open Space Authority

Santa Margarita Water District

Saratoga Cemetery District

Silveyville Cemetery District

Solano Cemetery District

Solano County Mosquito Abatement District

Solano Irrigation District

South Kern Cemetery District

South Santa Clara Valley Memorial District

Squaw Valley Public Service District

Stallion Springs Community Services District

Stockton East Water District

Sweetwater Springs Water District

Tahoe City Public Utility District

Tahoe Resource Conservation District

Tehachapi Valley Healthcare District

Three Rivers Community Services District

Three Valleys Municipal Water District

Timber Cove Fire Protection District

Town of Discovery Bay Community Services District

Trabuco Canyon Water District

Tulare Mosquito Abatement District

Tuolumne City Sanitary District

Tuolumne Fire District

Twain Harte Community Services District

Urban Counties of California

Vallecitos Water District

Vallejo Flood and Wastewater District

Valley County Water District

Ventura Port District

Vista Irrigation District

Walnut Valley Water District

West Bay Sanitary District

West Kern Water District

West Side Recreation & Park District

West Valley County Water District

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334