Sacramento watchdog group sues city to block email deletion

By Marissa Lang

mlang@sacbee.com

July 06, 2015 03:07 PM

In an effort to stop Sacramento from deleting hundreds of emails, watchdog group Eye on Sacramento has sued the city and requested a temporary restraining order preventing city staffers from deleting any correspondence. Jose Luis Villegas Sacramento Bee file
In an effort to stop Sacramento from deleting hundreds of emails, watchdog group Eye on Sacramento has sued the city and requested a temporary restraining order preventing city staffers from deleting any correspondence. Jose Luis Villegas Sacramento Bee file

In an effort to stop Sacramento from deleting hundreds of emails, a Sacramento watchdog group has sued the city and requested a temporary restraining order preventing the city’s staff from deleting any correspondence.

Eye on Sacramento is asking a Sacramento Superior Court judge to stop the city’s planned deletion of communications 2 years old or older that city officials have referred to as “transitory” and said are “irrelevant” to the public record.

The messages, saved on the city’s server, were scheduled to be deleted July 1 using a system that divides emails into two categories: city employee emails deemed expendable because they involve coordinating meetings or retrieving forgotten passwords; and those that relate to city business, pending legal cases or issues of public interest. The latter are flagged by city staffers and upgraded to “records,” a protected status that means they wouldn’t have disappeared on the city’s deletion deadline, according to the City Clerk’s Office.

“My clients understand the city’s desire to manage the city’s email archive,” said Paul Nicholas Boylan, the lawyer representing two citizens who requested last month that the city release all the emails it intended to terminate. “But the city’s interest can’t violate the public’s fundamental right to access public records. The city’s plan to destroy these emails after my clients have asked to see them is like a librarian burning down an entire library because a member of the public has asked to check out and read one book. It’s unthinkable that this might actually happen.”

Katy Grimes, president of the Sacramento Taxpayers Association, and Rick Stevenson, a member of Eye on Sacramento, filed two separate public information requests with the city on June 25. Grimes asked for all emails on the city’s server from Jan. 1, 2008, until present day. Stevenson asked for all emails that were slated for deletion July 1.

“This request is specifically in response to the recent public statements by various city officials, including City Attorney James Sanchez, that the city will be destroying all e-mails in its possession, custody and control that are two years or older on July 1, 2015,” Grimes wrote in her request. “These requests are, among other things, to obtain copies of those electronic messages prior to their deletion by the city.”

The city asked for an extension to respond to those requests, which froze the city’s plan to eliminate the emails in question until Wednesday, when the city is scheduled to respond. A Sacramento Superior Court judge is scheduled to consider the restraining order Tuesday.

Sacramento’s policy to delete 2-year-old emails was enacted in 2010. Prior to that, the city operated under loose guidelines that allowed emails to be deleted whenever they were “no longer needed,” a job that had been entrusted to an outside agency, according to Assistant City Clerk Wendy Klock-Johnson.

In the time since then, few emails have been destroyed as the city worked to perfect the system by which it would parse and delete emails, without accidentally losing records in the process.

“We haven’t been deleting because we wanted to make sure we were being good stewards of the records and that things would be deleted appropriately,” Klock-Johnson said last month.

According to California law, local agencies are required to retain most public records for a minimum of two years, though that rule does not apply to general, procedural emails.

Destruction of records affecting liens on real property; court records; records required to be kept by statute; and the minutes, ordinances or resolutions of a legislative body are not allowed to be destroyed.

A record, as defined by the state, means “all papers, maps, exhibits, magnetic or paper tapes, photographic films and prints, punched cards, and other documents produced, received, owned or used by an agency, regardless of physical form or characteristics.”

In a news release Monday, Eye on Sacramento drew comparisons between the city’s intent to delete the “transitory” communications and Mayor Kevin Johnson’s deleted text messages, including some related to the city’s arena deal, that he purged after city officials received a legal letter advising them to preserve all electronic communications related to the deal.

In testimony last week, Johnson described what he erased as “chitchat, but nothing relevant” to the court case challenging the deal the mayor and the city struck in 2014 to partner on building a new arena.

The lawsuit also comes as Johnson has filed a private lawsuit against the city of Sacramento and the Sacramento News & Review asking the court to block the city release of about 100 communications between him and a private attorney working on litigation related to the National Conference of Black Mayors.

Nearly five times that – about 475 emails – had been pulled from the public record as of Monday out of “an abundance of caution,” according to the City Attorney’s Office. Attorneys agreed last week to review and parse through the emails to determine which will be released to the News & Review and The Sacramento Bee, which filed separate Public Records Act requests for information this year about Johnson’s communications.

The emails in question were stored on a city server, and the City Attorney’s Office has deemed them part of the public record, but Johnson says they should be protected by attorney-client privilege.

Marissa Lang: 916-321-1038; @Marissa_Jae