Email Records Destroyed at City Hall Challenged by Lawsuit

• Litigation Uncovers Policy of Routine Destruction of Electronic Communications by Staff

BY BILL KOENEKER

Alawsuit filed by 11-year Malibu resident Hans Laetz challenging approval of the expansion of the Trancas shopping center (see separate story) also charges that the City of Malibu “destroys on a routine basis, public documents in the form of emails exchanged between the city staff and the shopping center owners, documents the public is entitled to read.”
Laetz cited the city’s “Administrative Policy 5.1,” which directs city staff to delete all incoming and outgoing email as soon as possible. Laetz states that it is city policy to destroy all email from its router and servers to prevent attorneys from reading them.
“Email is specifically mentioned in the California Public Records Act as public documents,” Laetz said. “We have evidence that suggests the city staff and applicant communicated extensively after the city first voiced objections to the Trancas shopping center. While the city staff no doubt acted honorably towards the applicant, the fact remains that the record of how Trancas market went from being unacceptable to being OK was destroyed and that is against the law and state Constitution.”
City Attorney Christi Hogin was not immediately available for comment.
Administrative Policy 5.1 states, “Because the complete deletion of computer files rarely occurs, attorneys frequently seek data files, back up tapes and even hard drives during litigation. Therefore, care must be exercised to follow the city’s network guidelines and procedures.”
Those procedures state “in most instances, this means deleting messages as soon as you have read them, and shortly after you have sent them.”
The municipal guideline does acknowledge that some emails might need to be part of the record. “Depending on the content of the email message, it may be considered a more formal record and should be retained as a hard copy pursuant to the department’s record retention policy.”
Several samples are cited such as communications regarding specific case files and other memorandum of significant public business.
According to the administrative document, email messages are considered “transitory” documents (work in progress) and therefore “are not usually subject to the city’s record retention requirements.”
In his lawsuit, Laetz said he requested, in writing, certain public records, including “all email communications to, among or from all city employees or contract workers regarding Trancas Shopping Center or Trancas market sent after the project proposal was first received by the city.”
After that Laetz says he was furnished with a copy of the city’s administrative guideline on email and Internet use policy. He said since then he was denied a request for additional emails and was told that per the city’s written policy, the emails requested by him had been destroyed to prevent the city’s computer servers from being overloaded and to prevent attorneys from gaining information by gleaming files.
“The City of Malibu has furnished to the plaintiff precisely one email from the Trancas proposal’s architect to a city assistant planner. The sole email referenced above had been printed out and placed in the city file along with other paperwork detailing the ‘Trancas Proposal.’ The above referenced document hints at an extensive series of email exchanges between the applicant and the city that had they been written in paper would have been an indisputable part of the public record on the application,” he noted.
Laetz indicated, in his lawsuit, that it is reasonable to now believe the city has adopted a policy, which holds that all electronic data placed on the city’s network is under control of and is the sole property of the city. The guideline, in fact, states that, “All electronic data placed on the city’s network is under the control of and is the sole property of the city.”
However, Laetz holds that the state code defines public records in such as way to include, “transmitting by electronic mail… regardless of the manner in which the record has been stored.”
Another piece of advice given to city employees handling sensitive materials is that “Data files that are attorney-client privileged communications or are otherwise exempt from the freedom of information laws (i.e. personnel matters) must be marked as such to avoid production as evidence.”