How long should our city hold on to official emails? That was the question before City Council in early October when policymakers declined to revisit our city’s email retention policy. The discussion came at the request of councilmember John Mirisch. He supports transparency and expressed a concern that the Beverly Hills policy of deleting official emails after only 30 days works against the spirit of the California Public Records Act. Because city email communications are presumed not to be public documents and deleted after 30 days, the Beverly Hills policy stands out as among the region’s least transparency-friendly. Before City Council was this question: Need City Hall recognize email as an official form communication and thus worthy of retention as a public document?
Here’s the spoiler: City Council voted 3-2 not to revisit the current policy. So the city will continue to adhere to our current 30-day standard. Under that policy, staffers will delete emails sent within and between city departments (as well to and from councilmembers and constituents) unless that staffer affirmatively decides that an email be retained as a public document. If not, on that 31st day, the message is metaphorically shredded. It is important to note that the policy also explicitly prevents email backed up in the normal course of operations from being produced in response to a Public Records Act even if it is recoverable.
At a time when civic engagement in public government in Beverly Hills is nearing an all-time low, and voter participation in city elections is forever in the tank, why the hostility toward transparency? Shouldn’t City Hall keep this essential conduit for conducting city business available to public review? Doesn’t making email impervious to review suggest to stakeholders something less than truly open city government?
The Pew Research Center and the Knight Foundation both view transparency as crucial to encouraging civic engagement in local governance. “If people believe their local government shares information well, they feel good about their town and its civic institutions,” the organizations observe in their report, How the Public Perceives Community Information report via Pew (2011). But not all of our councilmembers agree, however, as suggested by this excerpted exchange from the October 2nd City Council study session:
I don’t see a compelling reason to change. – Councilmember Gold
I’m surprised we have a 30-day policy – I thought we had at least a two year policy because of the public records act. We want to be transparent …. Something that we might think right now might not matter in a number of months or in a year or two might matter, so at the very minimum I would say that we correspond to the two-year policy of the public records act. – Councilmember Bosse
It seems like we haven’t had any complaints or concerns…. I’m concerned that the goal and objective of the extended time beyond the 30 days is for other people to look in and maybe try to find some nefarious email to embarrass someone, and it may not be relevant to some important issue. So I think the policy has worked so far and I don’t see any reason to change it. – Councilmember Brucker
I would agree with Councilmember Brucker on one point: He suggests that a longer retention period might allow other people to look at emails that have come or gone through City Hall. Absolutely: that’s the whole benefit of the public records act, and that’s the whole point of transparency…If someone wanted to look at documents related to Roxbury Park, for example, they wouldn’t be able to look at anything more than a month old… Access and transparency is a good thing: it’s doing the people’s business in the light of day. – Vice-Mayor Mirisch
I actually think the system is working right now and I don’t see a reason to make a change in the system. Two years is as arbitrary as ten years is as arbitrary as 20 years or 60 days or 30 days. If there’s an issue with the policy, that’s when you address [it]. I don’t’ think that this is transparency; I think it is a philosophical difference like death and taxes. – Mayor Brien
With a 3-2 sentiment running against revisiting the policy, the Mayor could conclude, “You have direction from three of us – which is the direction of the Council – to leave the policy as it is.”
But isn’t email today a chief conduit for intra- and inter-department communication? Surely there must be a law that says that official emails are public documents just like a text document or spreadsheet?
California Public Records Act is Silent on Email
Well, no there’s no such law. The California Public Records Act is a tool used by journalists, stakeholders and organizations every day to pry from the tight grip of government functionaries crucial information about how local governments perform. The Public Records Act presumes that material generated in the course of state and local government business is public (with broad exceptions) and that it be made available upon a simple request from the public.
We at Better Bike have used it only once to learn about how safety-related data informed our Traffic & Parking Commission’s decision process regarding the Bike Route Pilot program. But emails weren’t part of that review, however, because they are not treated like public records by Beverly Hills. And because the Public Records Act is silent on the categorization of email altogether, governments and public agencies have wide latitude to determine how to handle their email. (Indeed they vary in how they administer the Act too.)
Not surprisingly then, email retention practices vary across our region too. Beverly Hills is among the most conservative: as noted, we simply don’t recognize email as public documents. Malibu likewise calls them only “transitory” and does not retain them either. Both cities delete by default. Santa Monica however, takes a different position: emails are considered public records by default and are thus open to review upon request. And they make them available for a period of one year “unless classified by law as privileged,” according to their City Clerk. (That would include legal correspondence, closed-session communications, etc.)
Under these restrictive policies, who indeed decides whether an email is privileged or not? That point of decision makes all the difference. City of West Hollywood allows the recipient to decide, which is formalized in policy. In Beverly Hills, though, there is some ambiguity: administrative regulation 4C.11 hardly mentions how to actually categorize or retain emails. Yet the staff report presented to Council on October 2nd indicated that the recipient decides despite our policy being silent on who gets to decide. In a follow up query, our IT director said the recipient doesn’t actually decide. When asked again about the contradiction, he confirmed the staff report’s assertion that the recipient does indeed decide. So who does get to decide? Perhaps this will be sorted out only when a suit is brought against the city.
What’s the Difference Anyway?
There are legal reasons for nailing down our policy. Emails can reflect important policy discussions that may be of interest to the public. Councilmember Brucker took a dim view of discovery, however, seeing in it the potential for embarrassing the city or otherwise mucking around to no good end. Destroying email at the 31 day mark puts an end to discovery.
We see it the opposite way: emails are indeed public documents of city business and should be categorized that way and preserved for a reasonable amount of time before destruction. Indeed a rationale for the brief 30-day window (as noted in the staff report) was the expense of storing them. That argument no longer holds today as the cost of storage and the costs of database management have plummeted.
There is another good reason to revisit the email retention policy if only to clarify it: what happens when a member of the public asks to inspect an email prior to closure of that 30-day window? Will the email be denied as categorically not a public document? Or will that public request stop the 30-day clock? (We’re waiting to hear back.)
Going beyond our current policy, there are sound reasons for making email available to the public by default and beyond a mere 30-day window. Take this example: we wanted to know why our Traffic & Parking Commission declined to recommend significant bike-friendly safety treatments despite a high rate of bike-involved collisions that is reported by the BHPD to be on the increase. Indeed that record (provided to the commission) suggested the need for safety improvements. In declining to provide them, what did the commission discuss with Transportation staffers and the police department? Anything at all? Without the email chain, we’re simply left to guess.
The fact is that our City Council is on record by a 3-2 decision to favor a more restrictive policy puts Beverly Hills on the wrong side of transparency. Councilmember Mirisch was correct to call it up for review. Moreover, we need to follow Santa Monica’s lead. Email communication is vital to city business and needs to be part of the public record and available for review. Just because the Public Records Act is silent about it doesn’t preclude taking a pro-transparency position. Beverly Hills should revisit this issue after the March election.
We Editorialize: A Retrograde City Council Holds Our City Back
As with many recent policy decisions emanating from Council chambers, the decision to leave untouched our transparency-inhibiting and ambiguous email policy reflects an essential conservatism that does us no favor. Keep in mind that conservatism in Council chambers is not the same political conservatism we see in state and national politics. Personal political alignment simply doesn’t come up in city discussions, nor does it necessarily track with an individual member’s issue position. Rather our conservatism is the definition of the term in that it represents a disinclination to change. Where transparency and open government is concerned, conservatism will keep us a governing backwater long after other cities like Santa Monica have moved on to more robust models of civic engagement.
It’s not just about the process. Our traditional embrace of governing conservatism also hobbles us on policy substance, too. Consider sustainability and mobility. We call ourselves a ‘green city’ but we’ve taken few steps to mitigate the most significant contributing factor to our large and growing environmental footprint: transportation-generated greenhouse gases. When it comes to reducing vehicle congestion, we’ve hardly even tipped our hat to what other cities do. We see Los Angeles, Santa Monica, and West Hollywood laying down sharrows and installing bicycle racks by the hundreds to encourage cycling, but we’ve taken zero action here in Beverly Hills to get people out of cars.
Is it that we’re constitutionally averse to innovation? Do we bristle at the work it takes to move our city ahead? Are we simply satisfied to fund dubious marketing campaigns by the Convention & Visitors Bureau, or happy to funnel money into questionable Chamber of Commerce studies and East Coast business promo junkets? That’s not what it takes to grow the world-class city we like to talk about in Council chambers, but that’s what actually happens.
For example, City Hall a few years ago slapped solar on a city garage and purchased natural gas trash trucks and called ourselves the ‘green city.’ We taken a ton of money from Homeland Security for closed-circuit cameras and license plate readers and called ourselves the ‘smart city.’
But we continue to send our cops out on routine patrol in SUVs even while scrapping our bike patrol unit. We’ve yet to post our 2009-era Beverly Hills Sustainable City Plan on the website (go ahead and search for it) perhaps because adhering to the sound proposals therein requires leadership and investment. Evidently it’s enough to simply brand ourselves ‘green.’
And so it is with governing. We talk a good game about public participation but don’t do very much to encourage it. City Hall is lazy about posting online notice for city meetings, for example. Our email notifications of city meetings still don’t function properly. Public documents are not always legible (if they are posted at all) and our new website hardly begins to realize the value of public engagement in local governance. Evidently it’s enough to simply call ourselves ‘smart’ and hope nobody really notices.
It’s About the Bike, Stupid!
Mobility is the key to our economic and ecological future (after all, we’re a transportation keystone for the Westside and a contributor to the larger region’s eco footprint) yet mass transit and active transportation garner little respect from our policymakers. Just take a look at our bus stops to see just how little we care for our transit riders. Sit in the saddle to understand how little the city does to protect those who bike in Beverly Hills.
Tacit City Hall consensus on half-steps and satisfaction with mediocre outcomes can’t obscure just how elusive is true consensus on the substantive issues facing those elected to serve our city. Time and again, split 3-2 Council decisions remind us that we continue to adhere to traditions that will not move us forward literally or figuratively.
In declining to recognize that cycling is a valid and increasingly popular mobility choice, for example, our City Council reaffirms our commitment to the single-passenger motor car and all the costs it presents, from the time-sink of vehicle congestion to the cost in treasure to construct public parking garages while giving away free the parking spaces. Heck, taxpayers are subsidizing some retailers in city-owned property in the business triangle to the tune of 25% of the base rent (or more) simply to keep shops in business.
By failing to see that cycling can bring more foot traffic to these tired businesses and commercial districts, and by sticking with the old model of shoppers-in-cars to the exclusion of any other growth scenarios, City Hall nourishes an economic monoculture of banks, boutiques and nail salons that would not otherwise be sustainable.
Not that we haven’t tried to suggest an alternate path. Success in promoting local commerce by inviting cyclists in is found in Long Beach, San Francisco, Portland, New York and now even Los Angeles. That suggests we have additional options beyond those identified by our Small Business Task Force. Of course we’ve pointed them out time and again – most recently in a meeting with a Chamber of Commerce representative. We asked, How can we bring the benefits of cycling-related local development to Beverly Hills? The tepid reception we received was a stark reminder of how resistant the power players are in the Hills of Beverly to the vision and effort required to bring us into the 21st century.
We’ve offered those examples before, only to hear from officials, “We’re not New York. We’re not San Francisco.” But you know, every place wants that success. These are fine places to live. They are highly valued. They have many competitive advantages our city would kill for in order to attract and retain top-tier businesses. We turn our back on alternative pathways to the future, satisfied in wearing a lapel button that reads ‘green city’ or ‘smart city’ with precious little of substance to back up those boasts.