MARCH 28, 2022
A fundamental principle of a free and open society is that citizens have a right to know what’s going on inside their government. A crucial way Californians exercise this right is with the state’s Public Records Act, which allows people to see email correspondence, contracts and other documents held by local and state officials.
It’s how, early in the pandemic, journalists were able to reveal the details of California’s scramble to obtain medical masks, including the collapse of a nearly $800-million deal with a politically connected vendor and the decision to secretly wire nearly half a billion dollars to a company that had been in business for just three days — only to quickly call off the deal and claw back the money.
Emails obtained under the law allowed The Times and environmental activists to expose how Gov. Gavin Newsom’s administration worked to influence decisions in favor of a controversial water desalination plant. And documents The Times obtained under the law showed that the state parks department let some employees live at government-owned homes in some of California’s most scenic locales for cut-rate rents averaging $215 a month.
The law is clear that state agencies must, with some exceptions, release records in their possession. But what’s not clear is how long they must hang onto those documents. And this is critical, because the government can effectively hide records it doesn’t want the public to see by destroying or deleting them before anyone asks for them. Nothing to see here! Literally.
Legislation moving through the Capitol addresses the issue by requiring that all state agencies retain digital and paper records for at least two years. State law already requires that local governments do this, but state agencies have been allowed to decide for themselves how long to hang onto different kinds of records, and the range is huge. Just within the California Environmental Protection Agency, for example, retention timelines vary from 90 days for informal emails, to a decade for documents related to environmental justice investigations of birth defects, to permanent storage of correspondence with tribal governments.
Recently, when the Department of Insurance announced plans to start deleting emails after 180 days, an employee complained that they needed access to older emails to keep track of past communications in enforcement cases. The department, already facing litigation for not releasing detailed calendars requested under the Public Records Act, backtracked on the plan to speed up email deletion.
Assembly Bill 2370 would make clear that all state records, including email, must be retained for at least two years. Its author, Assemblyman Marc Levine (D-Greenbrae), is running for insurance commissioner this year with a campaign echoing the same concerns raised by Consumer Watchdog, the group that sued current Insurance Commissioner Ricardo Lara for calendars detailing his appointments with industry executives who contributed to his campaign. So this bill clearly has some political overtones.
But that does not negate the fact that it would advance government transparency and serve the public interest. We urge the Legislature to continue advancing the bill.
Similar legislation passed in 2019 but was vetoed by Newsom, who said it would be too costly to store data and hire the necessary personnel to manage retaining records. The Legislature’s price tag on that bill was vague, saying that “state costs could reach into the millions of dollars.”
Lawmakers ought to do a more thorough cost analysis this time around, including taking into account advances in technology that are continually reducing the cost of data storage. And then weigh that against the moral penalty for keeping the public in the dark.