This is the Executive Summary, Conclusion, Findings and Recommendations only. For the entire report go to:   2016 – 2017 Final Report

EXECUTIVE SUMMARY

The public has a right to know how government business is conducted. To that end, the California Public Records Act requires that government agencies promptly provide open access to unprivileged government records. These requirements help to ensure our confidence in a transparent government process.

The Grand Jury examined the county government’s electronic data-retention policies, how the county characterizes electronic communications, and how those decisions can affect the county’s response to public records requests. The Grand Jury found that there is a lack of consistent policy within Alameda County regarding public access to email correspondence. Although departments have independently implemented various policies governing the use of email, there is no evidence that adequate retention policies are in place. Further, decisions as to which email records to retain, or not, are left to the determination of individual staff in each department.

A consistent policy needs to be implemented throughout the county defining which emails are subject to public records requests, and how long those emails must be retained.

BACKGROUND

The 2015-2016 Grand Jury conducted a survey of each of the 14 cities in Alameda County to ascertain what policies are in place that govern public access to and retention of email correspondence.

As a result of the varied responses, the Grand Jury concluded that the four following best practices be implemented county-wide:

• Conduct business only on authorized email accounts issued by the governing entity
• Eliminate the use of email relays to private email accounts
• Preserve all emails for a minimum of two years
• Make public records easily accessible

This year, the Grand Jury addressed the same survey to the County of Alameda. The county has over 9,600 employees who provide services and support to the citizens of Alameda County. Much of the county’s important business is now transacted using email.

The California Public Records Act is a cornerstone of the state’s efforts to safeguard open government by giving citizens access to information, thereby providing opportunities for public oversight of governmental operations. The law provides the public with the authority to request documents and records from government agencies, including emails that help to explain how and why such agencies have made important decisions. This was underscored by a recent California Supreme Court decision holding that even electronic records kept in a public employee’s personal email account are subject to the Public Records Act if any content pertains to public business.

While the Public Records Act requires the disclosure of public records, it does not contain any provisions regarding how long a public record must be retained by governmental agencies. California Government Code section 34090, however, addresses this issue and is referred to as the state’s records retention statute. The statute requires that nearly all public records be retained for at least two years.

CONCLUSION

As electronic communications become more commonplace and as more public business is transacted by email, adequate and consistent policies must be in place to ensure transparency, retention and public access.

Having each staff member or elected official responsible for determining what may or may not require retention as a public record would appear to create an undue burden. Without proper training and support (not to mention job turnover), errors and omissions are bound to occur. The real possibility of deliberate destruction of public records also exists. Additionally, the burden of transferring the communication from the email system to another media for storage is extremely time consuming.

The county position is that email is treated like any other document. Individual employees have the responsibility to save or print electronic documents or communications if they

are deemed public records. Some documents, like those considered drafts, do not need to be retained. Unlike nearly every city within the county, the county government’s position is not stated in any formal policy distributed to departments and employees. Without a policy, the individual departments have no guidance to give to their employees.

As a result, the practical application of the county’s informal stance is that its 9,600 employees are responsible for managing their own email. They can delete any email that they send or receive at any time.

It should also be noted that, with the conversion to Office 365 and cloud storage, the financial impact of increasing retention should be minimal.

Although the county’s direct response answered many of the Grand Jury’s questions, the absence of a clear and consistent policy governing public records management is of special concern because the county’s elected officials and, specifically, the Board of Supervisors, should be held to a higher standard of transparency while fulfilling the obligations of their office.

FINDINGS

Finding 17-28:

Alameda County’s lack of a consistent policy for retention of electronic communications leaves employees with no guidance as to which email correspondence to keep, to delete, or how long to retain.

Finding 17-29:

There is no evidence of adequate training or support to assist Alameda County staff and elected officials in maintaining electronic communications consistent with state law.

Finding 17-30:

Individual staff members currently have control over which electronic communications are saved and which are deleted. This creates the potential for accidental, negligent, or even intentional destruction of public documents which should be available for public review.

RECOMMENDATIONS

Recommendation 17-18:

The Grand Jury recommends that a uniform county-wide email retention policy must be implemented for all departments, agencies and elected officials.

Recommendation 17-19:

The Grand Jury recommends that all email correspondence must be retained and available for retrieval for at least a two-year period, consistent with state law. This directive must be included in the county-wide policy.

Recommendation 17-20:

The Grand Jury recommends that each county department must develop individual training for staff and elected officials regarding email retention and the Public Records Act.

RESPONSES REQUIRED

Alameda County Board of Supervisors:

Findings 17-28 through 17-30

Recommendations 17-18 through 17-20