More Public Record Destruction

According to an editorial by Calaware, many Council Members are risking criminal charges with the way they routinely destroy public record.

...Anyone in business in any organization knows how central email communication is to planning, executing and reviewing operations. Email is the informational connective tissue that fills the spaces between formal meetings and documents and, if disclosed, allows scrutiny between the lines of official policy.

To get a candid, unvarnished picture of how our wars are being waged at the ground level, you don't go to Pentagon press releases; you look at Wikileaks dumps (or reports that translate them). On a more conventional scale, email is one of the first targets for public records access requests by journalists and other watchdogs, discovery demands in litigation, and subpoenas or search warrants in criminal prosecutions.

But a government record that has been destroyed, erased or discarded is beyond the reach of public access under the California Public Records Act or any other transparency law. Our state has two legal approaches to preventing or at least discouraging the purging of government records at will. One is the criminalization of such activity. The other is its regulation through records-management policies and laws.

On the criminal side, Government Code Section 6200 states:

Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following:
(a) Steal, remove, or secrete.
(b) Destroy, mutilate, or deface.
(c) Alter or falsify.

For non-officers guilty of the same acts, Section 6201 sets the penalty at up to a year's term in prison or jail, or by a maximum $1,000 fine, or both. In Loder v. Municipal Court, 17 Cal.3d 859 (1976) the court concluded that "inasmuch as no showing of specific intent is required by the statute, an officer who knowingly removes or destroys such a document is punishable even though he acts without a criminal purpose."

And it is no defense to a prosecution under this law to say that the records were exempt from disclosure under the Public Records Act and therefore not "public" in the first place. In the leading case under Section 6200, People v. Pearson, 111 Cal.App.2d 9 (1952) a police captain was convicted for removing vice squad investigative records from station files (apparently to show them to raid targets).

The court observed:

A paper written by a public official in the performance of his duties or in recording the efforts of himself and those under his command or written plans of future work is a public record and is properly in the keeping of the office.

Nor is Section 6200 confined to protecting legally mandated records. P

The CPRA sets two years as a minimum for retention of public records. The City of Encinitas' excuse is they define public record as only applying to those things that get saved. That's kinda circular and a lazy argument, that is not supported by the law.

Many people have publicly and privately offered to pay for the computer "upgrades" necessary to save all the email (and make it TONS EASIER for staff and council members), but those offers have been rejected. The council wants plausible deniability and steep controls on information.

Join Calaware here. Email the council (or write a letter) at council@encinitasca.gov and ask them to justify their policy and practice.