REPORT TO COUNCIL
SUBJECT
Title
Action on Recommendations from Governance and Ethics Committee to Amend Council Policy 046 entitled “Mayor and Council Public Records Policy” and Amend Email Retention from 90 days to two years for City Councilmembers
Report
BACKGROUND
At the March 4, 2024 Governance and Ethics Committee (Committee), the Committee discussed the policy on email retention. This agenda item was carried over from the approved 2023 Governance and Ethics Committee workplan. Staff presented information on the current policies pertaining to public records and email retention for the Committee for review and discussion.
In addition to email retention, the Committee also discussed the options to consider retention of text messages on City devices for a specific duration of time. City staff is currently analyzing the capabilities to retain text messages and the costs and feasibility of those options. City staff will return to the Governance and Ethics Committee with an informational report pertaining to text messages as a public record and its retention policy at a future Committee meeting.
After a discussion on the retention of public records, the Governance and Ethics Committee recommends amending the email retention from 90 days to two years for the Mayor and City Councilmembers and updating Council Policy 046 to include these proposed changes. This item is being brought forth to the full City Council for consideration and approval as recommended by the Governance and Ethics Committee.
DISCUSSION
As background, there are two current policies that provide information on public records and email retention which include Council Policy 046 (“Mayor and Council Public Records Policy”) (Attachment 1) and City Manager Directive (CMD) 42 Email Retention Policy (Attachment 2).
Council Policy 046 (“Mayor and Council Public Records Policy”)
Council Policy 046 was established to make clear what records created, received, or retained by the Mayor and the Councilmembers are considered public records available for disclosure and the policy outlines that any communications, including emails, texts, messages or comments on social media, to or from the Mayor or City Councilmember that pertain to the conduct of public business, regardless of whether or not they were created or sent to a private or public account, are public records that may be disclosed unless otherwise exempt from disclosure.
City Manager Directive (CMD) 42 Email Retention Policy
Per City Manager Directive (CMD) 42 Email Retention Policy, the City follows a 90-day email retention policy that documents and treats emails as “transitory communications.” In general, “transitory communications” include transmittal letters, confirmations of receipt, scheduling, instant messaging, voicemails, and other types of communications that don’t have a material impact on the conduct of City business. If, however, an email is more than “transitory” CMD 42 provides that such email should be retained and made available for disclosure in accordance with state law.
Government Code Section 34090 sets forth the minimum requirements for record retention for City records. Unless otherwise required by law, Section 34090 requires that emails related to City business be retained for a minimum of two years.
Both CMD 42, as applied to City staff, and City Council Policy 046, as applied to Mayor and Council, require that non-transitory emails relating to City business be retained for 2 years. Specifically, for Mayor and Council, the Records Retention Schedule identifies the records required to be retained and the retention period (Attachment 3). Under this schedule, the retention period for email records that fall within the Correspondence Record Description is two years.
California Public Records Act Requirements.
The California Public Records Act (Government Code Sections 7920.000 et seq (CPRA) requires the retention and disclosure of all “public records.” The CPRA defines a public record as, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” The California Supreme Court relied on this definition to state that a public record has 4 aspects, “it is (1) a writing, (2) with content related to the conduct of the people’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.” The CPRA applies to email messages on both city and personal accounts/devices and requires that proper identification and care of email be performed by the City Officials and staff.
Proposed Amendments for Council Policy 046
The proposed amendment to Council Policy 046 (Attachment 4) revises the 90-day email deletion policy to two-years for City Councilmember emails to minimize the risk of records being inadvertently deleted and maximize compliance with the requirements under the City’s retention schedule. This hold follows a two-year retention policy for all correspondence records as defined in the Mayor and City Council Retention Schedule. This amendment aligns with the recommendations from the Governance and Ethics Committee and the CPRA.
If the City Council approves the amended policy, the City will implement the process outlined below:
• Establish an automated two-year hold on all City Councilmember mailboxes and the general mailbox for the Mayor and Council. This action will retain all emails from the time the hold is enabled until the removal of the hold.
• Set a rule to automatically move emails (Inbox and Sent) which are two years or older to the deleted folder. After 21 days, the emails in the deleted folder will be permanently deleted.
• All email records on the two-year hold will be searchable and available for Public Record Act requests.
• City staff is developing a program to provide the City Councilmembers periodic trainings on public record management, including what constitutes a “transitory” record and best practices for responding to public records act requests on personal devices.
ENVIRONMENTAL REVIEW
This is an information report only and no action is being taken by the City Council and no environmental review under the California Environmental Quality Act (“CEQA”) is required.
FISCAL IMPACT
The anticipated costs would be associated with increased staff time to create new retention rules for City Councilmember mailboxes and the review of public records associated with the Public Records Act.
COORDINATION
This report was coordinated with the City Manager’s Office, City Attorney’s Office and Information Technology Department.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email clerk@santaclaraca.gov <mailto:clerk@santaclaraca.gov> or at the public information desk at any City of Santa Clara public library.
RECOMMENDATION
Recommendation
Adopt a Resolution approving the recommendations from the Governance and Ethics Committee to Amend Council Policy 046 entitled “Mayor and Council Public Records Policy” to include amending email retention from 90 days to two years.
Staff
Reviewed by: Maria Le, Assistant to the City Manager, City Manager’s Office
Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Council Policy 046 (“Mayor and Council Public Records Policy”)
2. City Manager Directive (CMD) 42 Email Retention Policy
3. Mayor and City Council Records Retention Schedule
4. Proposed Council Policy 046 “Mayor and Council Public Records Policy” (red line)
5. Resolution