Is City Hall’s ‘document deleting’ cause for alarm?

Mayor’s office and other departments are destroying correspondence at a rate that shocks First Amendment experts

San Francisco City Hall, in an apparently legal but troubling practice, is deleting public officials’ correspondence at a rate that stuns First Amendment experts. As a result, the public is sometimes unable to obtain documents related to issues including COVID-19, crime and other key issues, an Examiner investigation has found.

“The City should be erring on the side of preservation, not allowing for maximal destruction,” said David Snyder, executive director of the nonprofit First Amendment Coalition in San Rafael. “The willy-nilly destruction of emails and texts, if that’s what’s going on, is a huge problem.”

The City Attorney’s guidance on document preservation allows city employees to delete most e-mails and texts, but it prohibits the destruction of correspondence sought in public records requests, and requires The City to search for deleted emails on computers.

But records show some correspondence is almost immediately wiped out.

In one response to a public information request, Mayor London Breed’s office said it did not have texts between the mayor’s office and the chief of police’s office in response to a public records request filed three hours after the texts were sent.

Snyder said that kind of record destruction is inappropriate. “There’s no legal scenario I can imagine where destruction within three hours would be appropriate,” he said.

A spokesperson for the mayor’s office said the office “conducts a good faith, reasonable search effort to locate any responsive documents, including searching files and servers where such documents are likely to exist and consulting with individuals that might possess such documents.”

The spokesperson said the mayor has responded to hundreds of requests every year, providing thousands of records in accordance with department policy and city law.

In another case, The Examiner requested a copy of an email about early COVID-19 policy from the mayor’s office. After an exchange of 10 emails over two months, the mayor’s office responded, “We no longer have copies of such records in the Office of the Mayor.”

“That’s a real red flag. You were having a conversation about a document, and then they came back and said ‘We no longer have it’,” said Kevin Goldberg, a First Amendment specialist at the nonprofit Freedom Forum in Washington, D.C.

In another case, the mayor’s office said in June it had no records related to an early COVID-19 testing site being set up by The City. The email was an important document showing the early battle against the pandemic, potentially elevating it above the importance of most correspondence and into the realm of public interest.

Other city officials did consider it noteworthy enough to keep and necessary to disclose and provided the emails upon request. Withholding or deleting an email chain about an early COVID-19 testing site organized by the mayor is not in the service of the people of San Francisco, the First Amendment experts say.

“That’s exactly the opposite of what they’re supposed to do,” said Goldberg.

The mayor’s spokesperson, Andy Lynch, said the texts related to crime in Union Square and the email about the COVID-19 testing site “were maintained in accordance with the record retention policy and were not saved beyond the period they were needed for continuing operations.”

The spokesperson said “we no longer had a copy of the email” related to early COVID-19 policy, but provided the information it did have twice.

“The Office of the Mayor performs diligent searches for records in response to the many records requests it receives and retains records consistent with all applicable requirements. The Sunshine Ordinance Task Force has never found a violation by this administration for failure to preserve requested records,” the spokesperson said.

In another case, the Department of Public Health received a request for the texts of former Public Health Officer Tomás Aragón in June 2020. There were multiple emails about the request, but no records were produced. In February 2021, the DPH responded to the requester that it no longer had the texts because Aragón left his job at The City. The DPH did not immediately respond to a request for comment on the incident.

Part of the issue is an interpretation of San Francisco law giving city officials broad discretion over the destruction of documents, the experts say.

The City Attorney’s guidance on San Francisco law says “employees may immediately dispose of phone message slips, notes of meetings, research notes prepared for the personal use of the employee creating them, and the large majority of e-mail communications.”

“That leaves far too much discretion up to individual city employees,” said Snyder, of San Rafael’s First Amendment Coalition.

The City Attorney’s office said in a statement, “San Francisco’s ordinance governing records retention is consistent with state and federal law. Our office advises city departments to comply with those laws.”

Some experts disagree.

“It’s a lot broader than other cities’ records retention schedules that I’ve seen,” said Snyder.

Allowing employees to immediately delete emails on their own discretion “certainly skews toward more unusual policies,” said Goldberg of the Freedom Forum. “It’s unfortunate.”

And San Francisco attorney Karl Olson, who specializes in public records act litigation, went further: “Any policy which gives city employees and officials discretion to destroy documents, at least documents less than two years old, is inconsistent with the Public Records Act, state law and the constitutional right of access to public records.”

Some city departments are relying on documents destruction policies that are years old, one even predating email and texts.

The San Francisco Police Department’s policy on records retention is a typed document from 1993 that doesn’t mention emails or texts. The subject matter expert last working on the policy has retired, the department told The Examiner, but the department is working on an update.

Old document retention policies are problematic, Goldberg said. Technology changes, and there is less need to shed documents because there’s no longer a need to make room in file cabinets for paperwork. “You should be keeping records longer in the digital age,” he said, especially in a tech center like San Francisco.

The mayor’s office’s documents retention policy, signed by Mayor Ed Lee, is from 2014. It states that for most emails, “it is up to the originator or recipient to determine when document’s business utility has ended.” The mayor’s policy also says “records and other documents or materials that are not expressly addressed by the attached schedule may be destroyed at any time.”

Snyder said that policy “invites an interpretation that anything and everything can be destroyed right away.” That’s the opposite of what a records retention policy is meant to do, he said. “The policy should say records must be preserved, except under these exceptions.”

Experts say The City’s policy is a catch-22: The public has a right to request information from The City, but The City has a right to destroy it first.

“This situation flies in the face of everything we understand to be important about the retention of records at the state and city level,” Goldberg said.

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