Public Records Retention?

retention

We lose a little piece of Brea every day.

Most folks, when asked, “What is a public record?” will respond with birth or death certificate, high school or college diploma, marriage license. And they’d be right.

The public records and records retention I’ll be talking about here are the documents that give us a data trail describing how Brea’s government has been managed and by whom.

And we have a problem. A massive sucking black hole sort of problem that is allowing hundreds, if not thousands, of important records to disappear without a trace… forever. Every day. We are bleeding out.

Records retention is complicated.

retentionI’ve got to do a little bird walking to establish the context here. I apologize in advance and hope you’ll have the patience to stick with this to the end.

Brea has had a Records Retention Schedule for years, last updated 18 months ago. It only addresses the old world of paper. It does classify all manner of city documents. 518 actually, over 12 departments.

Some types of documents are controlled by state law. Council agendas, staff reports, resolutions, ordinances and minutes are managed and retained by the City Clerk from start to finish.

Electronic copies of these documents are available online, only back to 2010, which is a problem Council should have addressed decades ago.The good news is that we still have 100+ years of records. The bad news is they’re in old boxes in a dusty storeroom somewhere in the bowels of the Civic Center. Thankfully, our City Clerk and her staff is perfectly willing to go dig up anything out of there if someone requests. Bless them.

Brea’s records retention: Land of the Lost!

retentionOur records retention policies never made the leap into the digital age. Even though all communications have long since moved from the IBM Selectric to personal computers and storage cost on the cloud is quite manageable.

Unfortunately we have no true electronic communications policy for email and other documents.

What we do have is a 14 page IT Department policy that makes the following reference, “Employees should be aware that all public records, whether on paper or computerized, are subject to the mandatory public disclosure requirements of the California Public Records Act.”

The policy does state, “E-mail messages sent and received, including any attachments, which messages can be considered an Official City Record, are to be stored in computer files or printed as a hard copy and filed in accordance with the Department’s Filing Policy.”

Except there are no Department Filing Policies. My very thorough CPRA request specifically included them but none were ever produced. Most other cities do have Department Filing Policies and were quick to send me copies.

This general IT Policy also says, “Although the IT Manager may automatically delete any data stored in the e-mail system that is 90 days old, individual employees are responsible for the management of their mailboxes and associated folders. In order to assure maximum efficiency in the operation of the e-mail system, staff is encouraged to delete e-mail messages that are not Official City Records from their in-boxes once they are no longer needed. If a hard copy of data which constitutes an Official City Record has been printed and filed in accordance with the City’s Record Retention Policy, the e-mail may be deleted.”

The 90 day black hole!

retentionWell, buried in that massive bowl of bureaucratic word salad is the heart of the problem. Everyone on staff has defaulted to the path of least resistance and has allowed the auto-delete function do all of the work.

I cannot fathom how many priceless pieces of Brea’s public records have been forever lost in this manner. So much of what we might really like to know about how things were done in the past is lost. What was the context of the moment and the state of mind of those making the decisions?

The “claimed” loss of important correspondence surrounding the city’s dismissal of all interests in the Gateway Center is a classic example. Falling back on the ubiquitous “there are no records responsive to your request” (get-out-of-jail-free card), staff used the 90 day black hole to dodge a bullet.

When pressed if such correspondence ever existed the City Manager, Bill Gallardo, and Director of Community Development, David Crabtree, went mute. Crickets.

That’s because when it becomes known that a public record is incomplete or missing, there are precedents requiring that record to be restored. That’s how we got the deleted consultant’s proposal back on the Hines Project.

The heart of the policy.

retentionAs an aside, most of the IT Policy (12.5 out of 14 pages) focuses upon contents, i.e. employee rights and limitations, prohibitions against dissemination of derogatory, defamatory, obscene, disrespectful, sexually explicit or sexually suggestive content. Prohibitions against electronic snooping or tampering.

Confidentiality and perception of privacy are covered as well as establishing the City’s right to monitor and record employee usage… and a page requiring all employees, by signature, to acknowledge they have received, read and fully understand the terms of this policy and agree to abide by them. The terms and potential disciplinary actions include termination and/or criminal or civil prosecution. Yeah, I’m sure every employee is fully onboard with this and understands every word.

Records retention is really two problems.

The first problem is to thoroughly and completely identify and categorize every typical form of city communications in a manner which separates important public records from the chaff of everyday business.

The second problem is the greater of the two.

The bigger problem is oversight and enforcement. How do you get 300 to 500 busy people to consistently follow the guidelines, almost on a daily basis, in a manner that successfully maintains the public record?

Lets take a lesson from our neighbors.

La Habra is one of only two cities to address the enforcement problem. They have established a Records Management Committee, designated representatives from each City department and the Records Management Staff, created for the purpose of administering and coordinating the Records Management Program and to maintain and control the disposition of records in the respective departments.

Yorba Linda’s recently updated their Records Retention Policy. The City Clerk’s office takes the lead role in coordinating with all City Departments on the timely and appropriate destruction of obsolete records according to the Records Retention Schedule.

Particularly important is this part of Yorba Linda’s policy, “Before any records can be purged, each department will complete the Authority to Destroy Obsolete Records form which identifies each record and will require sign-off from the City Attorney and Department Head. Certificates of Destruction will be issued and these shall be permanently kept on file with the office of the City Clerk.”

Why can’t we do that?

retention

14 thoughts on “Public Records Retention?

  1. Rick, It does not make sense that the Brea Gateway documents would be tossed. For accounting, tax and legal purposes those are kept for at least seven years. If there are terms in the contract that requires continued obligations by any of the parties, the agreement is retained for at least 7 years after the last obligation is completed. It is likely that the attorneys and accountants working on the deal would have a copy in some form and the buyer and lender certainly would also have copies for the same reason. Also the auditor for the city would likely have a copy. It is difficult to comprehend that a copy of the agreement was tossed.

    • Tom… you are totally correct. In closing out Brea’s connection to the Gateway Center a proposal developed with the owner was presented to Council, reviewed and approved. The agenda, staff report, consultant’s report and resolution… and any other legal documents severing our stake in the project were retained.

      My extended CPRA request included the directive from the state to clear up remaining titles linked to RDA projects (which was what supposedly initiated the whole affair), the initial communication from the city to the owners and subsequent negotiations, all conducted via email. I was told no such documents exist, the “no documents responsive to your request” answer. I was reminded of the city’s 90 day deletion policy.

      When I asked if such documents had previously existed everything went dead silent. No responses to texts, phone calls or email. Nada. Nothing. Crickets. I’ve asked the City Clerk to restore the public record by obtaining copies of all communications from third parties but, without any acknowledgement that they existed, “proof” if you will, her hands are tied.

      Keep in mind that a prominent local businessperson and a member of Council were told about the communications by the City Manager… which is how it came to my attention. They’ve been no more successful at moving this forward than I have and are likely as frustrated I would imagine.

      Someone once said that it is wiser to not assume malfeasance when the more likely answer is ignorance. I’m fine with the notion that the 90 day black hole swallowed these documents up. Why the stalemate now in providing them? What possible motive could there be to refuse to restore the public record?

      • Rick, don’t you think that a copy of these documents could be obtained with a simple phone call to one of the parties to the agreement or involved counsel?

        I think so, though is this being done or are people afraid to ask?

        Of course, there as you said may be many other important documents that may need to be recovered.

      • Tom… Yes. it’s called restoring the public record. The City Clerk is prepared to do just that but needs confirmation “proof” from either the City Manager who initiated the effort or Development Services Director who conducted the negotiations.

        Both have been unwilling to respond to my repeated requests for them to admit the existance of the documents. The Council member who was a firsthand witness to the City Manager’s confirmations, thus far, has failed to step forward with the truth and the private party also privy to the truth is in no better position than I am to verify the proof required by the City Clerk.

        This stalemate is symptomatic of the necrotic condition of Brea’s internal affairs.

  2. Your in depth reporting and analysis of the inner workings of local government is greatly appreciated. Neither I nor anyone I know have the time to do the research necessary to drill down and then analyze those inner workings. While you and I do not necessarily agree on some things I hold in high regard your ability to call strikes & balls. Please keep it up.

    • Chuck… Never know what will happen down the road, we share more in common than the few differences we’ve found. Respect bro.

      Will keep it up as long as anyone is interested in reading it. Thanks.

  3. Spotted the link on Nextdoor. Please grab my info and put me on whatever new blog alert list you have. Your view of city hall and what goes on down there is second to none.

    I made an odd observation over on Nextdoor which probably hasn’t escaped others I’ll bet. It seems people get a lot more riled up about animal style burgers and fries, and long lines of traffic screwing up rush hour than they do the learning about the state of things at city hall.

    That helps explain why so many of them vote the way they do.

    • Class… You’re on the list, thanks for asking!

      I noticed the same thing. Wasn’t sure how to address it or if I even should. Everyone gets the same bite at the apple. Some find the worm.

  4. Rick,

    I just read your input, regarding the city’s woeful record keeping. I have neither time or inclination to probe as you do. At the same time, I am so glad that we have you, one so vigilant, regarding local ‘movers and shakers’ (City Hall). More power to you and keep daring to inform…Yes, I believe that notice of your blog came via ‘Neighbor’.

    P.S. In your writing, please do not assume that I, your reader, are familiar with acronyms, e.g. CPRA, RDA. Chalk it up to retention challenges of an aging mind. (I am sure that RDA doe not stand for Recommended Daily Allowance).

    • Doug… Once again, thanks for wading in. Digging into the details is not the part where I break into a smile, it’s a necessary evil. The joy comes, all too rarely I’m afraid, when my efforts bring about change. Either City Hall finally capitulates and they right a wrong or fix something that’s badly broken… or a growing number of residents understands a little more clearly what the status quo is at City Hall and voices their objections and/or elects folks willing to take a stand rather than just kissing babies and looking the other way.

      I’ve grown accustomed to the acronyms and alphanumerics so common in the public sector that I forget it’s a foreign language to others. I’ll try to do a better job DTR (Down The Road). Thanks for the reminder.

  5. Please explain to me how the city council is not unanimously changing the retention policy from 90 days to 10+ years, or forever, with the advent of the “cloud”? The short duration retention policy was a Tim O’Donnell brainchild, used to hide his nefarious activities, and should be changed immediately. If anyone on council says otherwise, they should be voted out or recalled. This is not debatable at any level.

    • Dwight… If I had an answer I would share it. It’s inexplicable. I have continued to press the City Clerk, Council and senior staff regarding the lost Gateway records and have sent them pounds of information supporting exactly what you suggest.

      The only thing they have in the cloud are their heads.

      Typically, best practices dictates that emails on pending transactions are kept whether the transaction is finalized or abandoned for the reason that they establish written communication as to facts and circumstances of how the deal got to its final form, the state of mind or intent of participants, and good faith in negotiations. When the transaction is complete or abandoned, these emails and notes are still kept for a time, in the event a party reneges and claims fraud in part or in whole, claims duress or other reason to escape a contract’s obligations.

      The only response I’m receiving regarding my records request is still “there are no records responsive to your request” – they were deleted after 90 days. No one copied on my email to the City Clerk has taken even a couple of seconds to respond with “Thank you for your email.” – unacceptable.

    • Dwight’s right, this is crap. There are state codes and guidelines that prohibit this sort of asinine practice. The minimum retention, across the board, is two years. Most documents, including correspondence (email) that qualifies as public records, run from five to ten years.

      Why isn’t the Records Retention Schedule online? Where do I get a copy? The other cities you checked out all make theirs public.

      • Bill… You and Dwight are both right. This b_llsh_t 90 day deletion policy is legally challengeable and should be.

        Email the City Manager, Bill Gallardo, at billga@cityofbrea.net or give him a call at (714) 990-7710 and ask him why the Records Retention Schedule isn’t published online.

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