REPORT TO GOVERNANCE AND ETHICS COMMITTEE
SUBJECT
Title
Review and Discussion on Email Retention Policy
Report
BACKGROUND
At the December 5, 2022 Governance and Ethics Committee, the Committee discussed bringing forth an item to review options to consider changing the email retention policy for City Councilmembers. The item was approved as part of the 2023 Governance and Ethics Committee workplan. At the September 11, 2023 Governance and Ethics Committee meeting, staff provided a verbal update on the status of the review of the Email Retention Policy and deferred the item to early 2024.
At this March 4, 2024 Governance and Ethics Committee meeting, staff will provide an update on the current policies pertaining to public records and email retention for the Committee to discuss and provide any recommendations.
DISCUSSION
As background, there are two policies that provide background on public records and email retention which include Council Policy 046 (“Mayor and Council Public Record Policy”) (Attachment 1) and City Manager Directive (CMD) 42 Email Retention Policy (Attachment 2),
Council Policy 046 policy 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 the following:
1. 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.
2. The Mayor and the Councilmembers shall only use official City email and text
accounts to conduct City business.
3. The City shall provide the Mayor and the Councilmembers with separate publicly owned devices such as cell phones and tablets for the conduct of City business.
4. The Mayor and the Councilmembers shall endeavor to keep communications regarding City business out of their personal accounts and shall forward any communications regarding City business that they receive in their personal accounts to their official City accounts.
5. Any communications, including emails and texts that relate to an Agenda item received before or during a Council meeting by a majority of the Council must be disclosed in accordance with Government Code Section 54957.5.
6. No campaign activity may be conducted on City accounts or City devices.
7. If a request for records is received, a search that is reasonably calculated to locate responsive records will be conducted. Privacy concerns can and should be addressed on a case-by-case basis. Communications that are primarily personal, containing no more than incidental mentions of City business are generally not considered public records.
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.” There is no statutory definition for “transitory communications.” However, CMD 42 provides that City email is a business tool that should be used to provide communications on City business and is subject to the same laws, policies, and practices that apply to other means of communication, including the California Public Records Act, CA Gov. Code § 7920.000 et. seq. (CPRA).
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.
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.” City of San Jose v. Superior Court (Smith) 2017 2 Cal 5th 608, 617. 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.
City Officials and staff are required to actively monitor and evaluate email messages for the information they contain, the purpose they serve, and the relevant retention topic to which they belong in order to determine whether they should be retained or disposed of. Given the frequent use of email, it should be evaluated on a regular basis with transitory emails being deleted when no longer needed, and a record that is required to be retained be moved into the appropriate file folders. CMD 42 states employees must determine when these communications constitute records which should be retained and how to retain them.
The following is outlined in the CMD 42 Email Retention Policy:
1) City email systems are utilized for communication and not for the permanent storage of records.
2) While the majority of City emails are preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the City in its ordinary course of business and are therefore not public records, those email communications that are a public record should be retained and accessible for the appropriate time period before destruction.
3) Email which is public record is open to inspection by the public upon request, unless exempt from disclosure.
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. The City’s current 90-day email deletion policy complies with the Government Code Section 34090 by envisioning that Councilmembers and staff will actively preserve emails that qualify as City records by either archiving or printing such emails in retaining the records in accordance with the City’s Retention Policy.
The Mayor and City Council 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. In order to retain these records for the requisite period, Councilmembers must actively move these records into folders outside of the inbox and sent folders.
Understanding the 90-day email deletion policy and record-keeping requirements may create an undue burden on our part-time Councilmembers, the Committee could consider the following potential changes to the existing email retention policy:
1. Revise the 90-day email deletion policy to 2 years for Councilmembers to minimize the risk of records being inadvertently deleted and maximize compliance with the requirements under the retention schedule.
2. Require Councilmembers to forward City records located on their personal accounts and devices to their City accounts or a cloud-based drive so that there is a repository in one location for all their public records.
The Governance and Ethics Committee shall discuss and provide recommendations to bring forth to the full City Council for review and consideration CMD Email Retention Policy as it applies to elected officials.
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 Information Technology anticipated costs would be associated with increased administrative staff time to prepare and review higher volume of records if is extended beyond the 90-day period
COORDINATION
This report was coordinated by the City Manager’s Office, Information Technology Department and City Attorney’s Office.
PUBLIC CONTACT
Public contact was made by posting the Governance and Ethics Committee 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
Consider and Direct Staff to Develop Possible Modifications to the City’s Email Retention Policy for City Council and Potentially other forms of City Council communications, for ultimate Consideration for Approval by the City Council
Staff
Reviewed by: Maria Le, Assistant to City Manager and Elizabeth Klotz, Assistant City Attorney
Approved by: Jōvan D. Grogan, City Manager and Glen Googins, City Attorney
ATTACHMENTS
1. Council Policy 046 (“Mayor and Council Public Record Policy”)
2. City Manager Directive (CMD) 42 Email Retention Policy
3. Mayor and Council Retention Schedule