Honorable Mayor and Members of the City Council

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1 TO: ATTENTION: FROM: Honorable Mayor and Members of the City Council Jeffrey L. Stewart, City Manager Mayra Ochiqui, City Clerk Karl H. Berger, City Attorney SUBJECT: Consideration and possible action to adopt Resolution No. 17-XX A Resolution regarding retaining and purging public records in electronic form, and superseding Resolution No DATE: June 26, 2017 EXECUTIVE SUMMARY Following a decision made by the California Supreme Court in March, the City Clerk s Office worked with the City Attorney s Office to draft proposed amendments to the City s existing electronic communications policy. RECOMMENDATION TO CITY COUNCIL 1) Adopt Resolution No. 17-XX; or 2) Alternatively, discuss and take other action related to these items. FISCAL IMPACT None. DISCUSSION On March 2, 2017, the California Supreme Court rendered a decision in City of San Jose v. Superior Court (Smith) (the San Jose case ). That decision prompted the City Clerk s Office to seek advice from the City Attorney s Office regarding the City s current retention policies as to electronic communications. Following that consultation, the City Clerk recommends that the City Council adopt the draft resolution amending the retention of electronic communications, including social media. On August 22, 2016, the City Council adopted Resolution No which constitutes the City s existing retention policy for electronic communications. Among other things, that retention policy provides direction for the routine, automatic deletion of electronic mail and voic on a minimum 90-day basis. As noted at that time, this policy was grounded in then existing law. Page 1 of 2 1

2 Staff Report Electronic Communications Retention Policy June 26, 2017 Page 2 of 2 DISCUSSION - Continued In March 2017, however, the San Jose case prompted a reexamination of the City s policies in light of the Supreme Court s decision. The draft Resolution seeks to implement the direction provided by the San Jose case. The San Jose case extended the reach of the California Public Records Act to private accounts owned by public officials. Electronic communications prepared by public officials and employees whether using public or private accounts are now subject to the PRA and (unless otherwise exempted) must be disclosed upon request. Note that electronic communications is more than just . That term includes virtually every recorded form of communication that includes, without limitation, Facebook comments; tweets; Instagram; texts; voic s; and Snapchat. Accordingly, it is important for all officials to be cognizant of their private communications; they may also constitute a public record that is subject not only to disclosure and retention requirements, but may have additional import (e.g., evidence during public hearings). Based upon the San Jose case, the City Clerk s Office also reexamined the automatic purging of electronic communications. In an abundance of caution (and based upon comments from the Supreme Court), it is recommended that the City use a 2-year time period for the automatic deletion of electronic communications. This does not mean that all electronic communications must be preserved for two years. Government Code Section 6254 provides that drafts and preliminary memos are not disclosable public records. As a result, many communications can be deleted immediately since they generally are not used in the course of business: they are usually a written form of a conversation between sender and recipient. The draft Resolution regulates those electronic communications that are used in the course of the City s business, or that constitute a final draft of a business decision. Examples of such records include, without limitation, existing service contracts and agreements, historical records, and other such items expressly required to be retained by law. ATTACHMENT A. Memorandum from the City Attorney Dated March 10, B. Draft Resolution No. 17-XX Electronic Communications Retention Policy

3 CITY OF BELLFLOWER O FFICE OF THE C ITY A TTORNEY MEMORANDUM DATE: March 10, 2017 TO: FROM: SUBJECT: All City Officials and Personnel City Attorney s office Electronic Communications and Personal Accounts and Devices On March 2, 2017, the California Supreme Court rendered a decision in City of San Jose v. Superior Court (Smith). As we advised in December 2016, the Court found that electronic communications pertaining to public business and that are conveyed using a personal, nongovernmental account or electronic device, constitute public records subject to disclosure by public agencies. 1 We thought it would be prudent to provide you with an overview of the San Jose case and suggest some practical solutions for complying with that decision. California Public Records Act ( PRA ) 2 The PRA 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... local agency regardless of physical form or characteristics. 3 A writing includes handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, magnetic or punched cards, discs, drums, and other documents City of San Jose et al. v. Superior Court of Santa Clara County (Smith) (2017) Cal.4 th, 2017 WL ( San Jose ). 2 Government Code 6250, et seq.; subsequent references to an unspecified code are to the Government Code (e) (g). 3

4 March 10, 2017 Page 2 of 4 Most public agencies have official accounts that are used by elected officials and employees that are hosted by publicly owned servers. Such accounts are clearly owned and retained by such public agencies. Thus, it was widely understood that any communications that related to the conduct of the public s business and were transmitted via official accounts were subject to the PRA. The more difficult question was whether the PRA extended to personal addresses, accounts, personal social media accounts, and personal devices (smartphones, computers, etc.; collectively, private ). The conventional wisdom among municipal attorneys was that the PRA did not extend to private . This viewpoint was generally supported by the available case law (e.g., trial court upheld city s decision not to disclose s from councilmember s home computer using private address). 5 The California Supreme Court, however, has now resolved the debate in favor of the broad language in the PRA. Electronic communications prepared by public officials and employees whether using public or private are subject to the PRA and (unless otherwise exempted) must be disclosed upon request. The reasoning? The Supreme Court found that public agencies are considered to own, use or retain such communications because they have constructive possession of such communications through its own officials and employees. Consequently, the public agency constructively retains the writings even when such writings are stored by private . 6 Tips and Recommendations in Light of San Jose Note that this decision is not really new law. Rather, it is an interpretation of existing law that has some precedence (case law previously found that writings in the possession of private consultants working for public agencies were subject to the PRA). Now, however, the City must be aware that any PRA request for records extends to private (not something that was previously contemplated by most jurisdictions). To help, we thought the following list of tips and recommendations may be useful: 1. The PRA Only Applies to Public Records, and not Personal Records. The PRA only applies to public records as defined above, i.e., the communication must pertain to the public s business. The Supreme Court emphasized that communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records. 7 Whether a communication is a public record depends on several factors such as the 5 See, e.g., Tracy Press, Inc. v. Superior Court of San Joaquin County (City of Tracy) (2008) 164 Cal.App.4th WL at WL at 4 (emphasis added). 4

5 March 10, 2017 Page 3 of 4 content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee or official acting in his or her employment. For example, the Supreme Court noted that while an employee s to a spouse complaining my coworker is an idiot would likely not be a public record, an to a superior reporting the coworker s mismanagement of an agency project might be The PRA s Exemptions to Disclosure Still Apply, and Any Personal Information in a Public Record Will be Redacted Before it is Disclosed. Even if a writing is a public record, the PRA includes many exemptions, such as a catchall provision that allows records to be withheld if the public interest in disclosure is outweighed by the City s interest in non-disclosure. 9 Likewise, the PRA exempts personal financial data, and personnel and medical files. 10 If only a portion of the record includes personal information, then the City may redact such information from the record before it is disclosed. 3. All Employee Communications Should be Sent Via City Accounts. Our office recommends the City adopt and enforce a policy that requires employees to conduct City business only on City accounts. That way, the City can easily search employee accounts when responding to a PRA request for employee s. In the event an employee is unable to access his or her City account and must use his or her personal account, the employee should be required to either cc the employee s City address or forward the from the personal account to the City account. 4. Elected and Appointed Officials Should Consider Only Using City Accounts When Conducting City Business. In the event that an elected or appointed official either does not have a City address, or chooses to use his or her personal address when conducting City business, the official must be prepared to search his or her personal account in the event the City receives a PRA request for communications. To avoid a situation where the official has to search his or her own account or device in response to a request, or to avoid a court ordering the City or official to do so (as discussed below), we strongly recommend that officials with City accounts conduct City business only on such accounts. 5. The City Need Not Conduct Searches of Personal Accounts or Devices Itself. If the City receives a request seeking public records held in employees or officials nongovernmental accounts, the City s first step should be to communicate the request to the employees or officials in question. The Supreme Court noted that the City would not necessarily have to conduct searches of personal accounts or devices itself; instead, the WL at (c), (n). 5

6 March 10, 2017 Page 4 of 4 City should be able to reasonably rely on these employees (and officials) to search their own personal files, accounts and devices for responsive materials. 11 In the event of litigation, however, the City would need to prove that the employee or official had searched his or her personal account. That may require the employee or official to verify such action. This is usually memorialized in an affidavit, signed under penalty of perjury, by the employee or official. In the event of litigation, it is also possible that a reviewing court could require the City to take a more proactive role, such as hiring a third party to do a forensic search of employees or officials personal devices. To avoid the time, expense and hassle that could potentially be incurred in searching personal accounts, we strongly recommend that whenever possible, officials only conduct City business on City accounts. 6. Public Records within Personal Accounts Should be Retained for Two Years. California law generally requires most public records to be retained for a minimum of two years. 12 The City s retention schedule including its electronic communications policy does assign different retention periods for various documents; these reflect either statutory requirements or department preferences. The San Jose case is an excellent opportunity for the City to reexamine its retention policy particularly as it relates to the retention requirements as to public and private . Based upon the Supreme Court s decision, we believe it prudent that any electronic communications pertaining to City business kept on a personal account be retained for at least two years. Remember that private , as discussed in this memorandum is more than electronic . Public records that consist of writings under the PRA extends to virtually every recorded form of communication that includes, without limitation, Facebook comments; tweets; Instagram; texts; voic s; and Snapchat. Since the San Jose case clearly extends the PRA to private (as defined in this memorandum), it is important for all officials to be cognizant of their private communications; they may also constitute a public record that is subject not only to disclosure and retention requirements, but may have additional import (e.g., evidence during public hearings). We will be proposing amendments to the City s electronic communications policy to help implement some of the practical items in this memorandum. In the interim, if you have questions, please contact us in the City Attorney s Office. A copy of the San Jose decision is attached for your reference WL at

7 CITY OF BELLFLOWER RESOLUTION NO. 17-XX A RESOLUTION REGARDING RETAINING AND PURGING PUBLIC RECORDS IN ELECTRONIC FORM, AND SUPERSEDING RESOLUTION NO THE CITY COUNCIL RESOLVES AS FOLLOWS: SECTION 1. The City Council finds as follows: A. On August 22, 2016, the City Council adopted Resolution No to establish a policy for retaining and purging electronic mail and voic . B. On March 2, 2017, the California Supreme Court rendered a decision in City of San Jose et al. v. Superior Court of Santa Clara County (Smith) (2017) 2 Cal.5th 608 ( San Jose ). C. The San Jose case, among other things, extended the reach of the Public Records Act (Government Code ; the PRA ) to public records stored in the personal devices and accounts of public officials and employees. D. The definition of public records under the PRA extends to virtually every recorded form of communication including, without limitation, Facebook comments; tweets; Instagram; texts; voic s; and Snapchat. E. The San Jose case makes it plain that it is in the public interest for the City Council to amend its previous policies regulating public officials and employees use of electronic communications and identify the circumstances when electronic communications must be preserved. SECTION 2. Purpose. This Resolution is adopted to establish policies that help ensure the City s compliance with applicable law including, without limitation, the California Public Records Act; protect the public welfare; and facilitate City business practices. Nothing contained in this Resolution is intended to hinder City officials, officers, or employees use of electronic communications. SECTION 3. Definitions. Unless the contrary is stated or clearly appears from the context, the following definitions will govern the construction of the words and phrases used in this Resolution: A. Account means either a City-owned or commercial service which provides users the ability to send, receive, or store electronic communications. B. Archival form means either: 1. Transcribing or printing electronic communications in a legible hard copy form; or Page 1 of 5 7

8 City of Bellflower Resolution No. 17-XX Page 2 of 5 2. Transmitting, converting, or recording an electronic communication into an electronic format by which the informational content of the electronic communication is permanently or indefinitely preserved and such information may be retrieved in readable or audible and comprehensible form. Examples of such storage include, without limitation, optical disk storage; microfiche; and digital photography that is incapable of deletion or alteration. C. Electronic communication or communication means 1. Any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system; and 2. That occurs to, from, between or among any City official(s) or employee(s) by using an account for City business purposes. 3. Electronic communications include, without limitation, and Social Media. D. Record means a thing which constitutes an objective lasting indication of a writing, event or other information, which is in the custody of a user and is kept either 1. Because a law requires it to be kept; or 2. Because it is necessary or convenient to the discharge of the user s duties and was made or retained for the purpose of preserving its informational content for future reference. 3. A record does not include personal records. A personal record is a communication that is primarily personal, containing not more than incidental mention of City business. Whether a communication is a personal record depends on several factors such as the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by a user acting in his or her employment. For example, while a user s to a spouse complaining about a coworker would likely not be a public record, an to a superior reporting the coworker s mismanagement of a City project might be. E. Social Media means forms of electronic communication through which users create online communities to share information, ideas, personal messages, and other content. Current examples of Social Media include, without limitation, Facebook, Twitter, Instagram, Snapchat, and YouTube. 8

9 City of Bellflower Resolution No. 17-XX Page 3 of 5 F. Storage means 1. Any temporary, intermediate, or long-term storage of an electronic communication; and 2. Any storage of electronic communication in an account for purposes of backup protection of such electronic communication. G. User means City elected and appointed officials, officers, employees (regular, extra-help and temporary), contractors, volunteers, and other individuals who 1. Utilize electronic communications; and 2. Are authorized to use a City account. SECTION 4. Applicability. This policy applies to users. Third parties should only be provided access to City accounts as necessary for their business purpose with the City and only if they agree to abide by all applicable rules. SECTION 5. Preservation of Electronic Communications that Constitute Records. Electronic communications that constitute records should be converted into archival form and must be retained for the period prescribed by the City s retention schedule. SECTION 6. Preservation and Routine Deletion of Electronic Communications. A. Electronic communications that are not records should be routinely deleted from accounts by the user without preserving any portion of the informational content of the communication. B. All user communications should utilize City accounts. 1. Users who are City employees are required to use their City-owned accounts for electronic communications. In the unlikely event an employee cannot access his or her City account and instead must use his or her personal account, the employee must send a copy of the communication to the City account. 2. Users who are elected or appointed City officials are encouraged to only use their City-owned accounts for electronic communications. Should an elected or appointed City official not have a City owned account, or chooses to use his or her personal account for electronic communications, the user must be prepared to search his or her personal account should the City receive a request for records. 9

10 City of Bellflower Resolution No. 17-XX Page 4 of 5 SECTION 7. Personal Accounts. A. If the City receives a request seeking public records held in a user s personal account, the City will communicate the request to the user. The user is responsible for reviewing their personal account and providing the City with any responsive record. In doing so, the user must complete an affidavit in a form approved by the City Attorney certifying the good faith efforts undertaking to identify any responsive record. B. Records stored in personal accounts must also comply with the two-year retention period set forth in this Resolution. SECTION 8. Special Rules Applicable to Records. A. The City s accounts should not be used for storing records. As with other forms of electronic communication, s and attachments that constitute records should be converted into archival form and retained in accordance with the applicable retention period. B. and attachments that contain or may contain embedded metadata must be archived in a manner that ensures the metadata component is preserved as required by law. C. To guard against the inadvertent deletion of records, s and attachments will be retained in within the City s account for a period of two years, after which time they may be automatically purged from the system. SECTION 9. Archives Preserved pursuant to Retention Schedule. Once in archival form, electronic communications will be preserved pursuant to the City s approved retention period for the file or record series in which such communication is placed, or to which it relates. Retention provisions of this section will not be deemed to impose any legal requirement or obligation on the City or any of its officers and employees not otherwise required or established by any other provision of law. After consulting with the City Attorney, the City Clerk, or designee, will determine whether such communications should be permanently preserved, disclosed, produced, or destroyed in accordance with the City s retention schedule. SECTION 10. Compliance with law. Immediately upon receiving a public records request, subpoena, or court order which identifies an electronic communication, users must use their best efforts, and use all reasonable means practicable, to preserve such electronic communications. SECTION 11. Administrative Policies and Procedures. The City Manager will establish policies and procedures as necessary to carry out this policy. 10

11 City of Bellflower Resolution No. 17-XX Page 5 of 5 SECTION 12. Previous Policies. To the extent that Resolution No (adopted August 22, 2016), and any other resolution pertaining to policies regulating the retention and destruction of public records in electronic form is incorporated into this Resolution, it is superseded in its entirety. SECTION 13. Construction. This Resolution must be broadly construed to achieve the purposes stated in the Resolution. It is the City Council s intent that the provisions of this Resolution are interpreted or implemented by the City and others in a manner that facilitates the purposes set forth in this Resolution and applicable law including, without limitation, the Public Records Act. SECTION 14. Enforceability. Repeal or supersession of any previous resolution or policy does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before this Resolution effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this Resolution. SECTION 15. If any part of this Resolution or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Resolution are severable. SECTION 16. The Mayor, or presiding officer, is hereby authorized to affix his signature to this Resolution signifying its adoption by the City Council of the City of Bellflower, and the City Clerk, or her duly appointed deputy, is directed to attest thereto. SECTION 17. This Resolution will become effective immediately upon adoption and will remain effective unless repealed or superseded. PASSED, APPROVED, AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF BELLFLOWER THIS OF ATTEST: Ron Schnablegger, Mayor Mayra Ochiqui, City Clerk APPROVED AS TO FORM: Karl H. Berger, City Attorney 11