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A new state bill proposed by Assemblyman Todd Gloria would require public agencies to retain emails for at least two years before automatically deleting them.
State law already requires cities to retain public records for two years. But many cities and other government entities have instituted policies allowing them to delete emails far sooner relying on the argument that the law is not clear regarding emails.
Gloria’s bill, AB 1184, would clarify emails must be retained for at least two years, according to bill language obtained by Voice of San Diego.
A VOSD survey of San Diego County cities’ policies regarding email retention found that many of them delete records quicker than the two-year mark, and some – like Encinitas – retain them for as little as 30 days.
That means that emails that could shed light on important processes or decision-making could be forever lost before anyone would even know to request access to them. It also means that employees of those agencies lose access to their own emails after just a short period of time.
“Open government is a centerpiece of a sound democracy. Because public agencies conduct the people’s business, the people have a right-to-know and a right to access government information,” Gloria said in a statement. “Access to public records and communications is fundamental to upholding public trust and, in some cases, preserving public safety.”
Open government attorneys and advocates have long argued cities and other public agencies that delete emails before two years have transpired are simply violating the law.
“The idea that agencies have come up with to avoid complying with that rule is saying, ‘Well, they’re not really records.’ They’re obviously public records. The Supreme Court ruled that emails were disclosable public records. … I don’t think there’s any real, serious legal question about whether they need to retain them” said Kelly Aviles, an attorney who focuses on public records and serves as vice president Californians Aware, an open government advocacy group. “I think it would be very helpful to have a minimum retention period stated so that these arguments cannot be made anymore.”
San Diego Unified School District recently agreed to retain employee emails for two years before automatically deleting them, as part of a settlement with Voice of San Diego. The district initially proposed deleting emails after just six months, then changed its proposal to one year. But it agreed to the two-year retention policy after Voice of San Diego and San Diegans for Open Government sued over the proposal. That settlement agreement only lasts for five years. If Gloria’s bill were to pass, the two-year retention period – for the district and public agencies across the state – would be permanent.
The school district and other agencies that keep emails for under two years have cited storage and costs as a burden.
“The public has a right to access these records and it’s the duty of public agencies to retain and store them,” said Gloria spokesman Nick Serrano in an email. “We believe the two-year requirement strikes a reasonable balance and is a practical and feasible threshold for public agencies to meet.”
In 2014, when he served as interim mayor, Gloria proposed that the city should delete emails after one year, citing storage capacity and the cost of increasing email storage. But Mayor Kevin Faulconer took office the following month, and killed the policy before it went into effect.
The city of San Diego now keeps emails permanently, and has records of emails going back to 2008.
Serrano said that at the time Gloria proposed the one-year plan, the city didn’t have any policy guiding email retention and that in the years since then, legal proceedings have clarified the two-year standard.
“Had this have been the situation in 2013-2014, Todd would have adopted two years as the city’s e-mail record retention standard,” Serrano wrote in an email.
Correction: An earlier version of this post cited an old Poway email retention policy. The city now keeps emails for two years.