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RPVCCA_CC_SR_2014_03_04_08_Coucil_Policy_Re_Council_Email_In_Response_To_PRA'sCITY OF RANCHO PALOS VERDES MEMORANDUM TO: FROM: DATE: SUBJECT: REVIEWED: HONORABLE MAYOR AND CITY COUNCIL MEMBERS CAROL W. LYNCH, CITY ATTORNEY AND, GENA STINNETT, ASSISTANT CITY ATTORNEY MARCH 4, 2014 CITY COUNCIL POLICY REGARDING DISCLOSURE OF CITY COUNCIL MEMBERS' EMAILS AND OTHER CORRESPONDENCE SOLELY IN THE POSSESSION OF CITY COUNCIL MEMBERS IN RESPONSE TO PUBLIC RECORDS ACT REQUESTS CAROLYNN PETRU, ACTING CITY MANAGE~ RECOMMENDATION: Approve the City Council Policy that is attached to the Staff Report. BACKGROUND As the Council knows, requests for public records made pursuant to the California Public Records Act ("CPRA") have increased dramatically over the last several years. Requests for public records often include emails and correspondence to and from City Council Members regarding a variety of topics. The CPRA defines local public records as follows: "Public records" includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. " (Government Code Section 6252(e).) The CPRA requires the City to disclose upon request public records that are within the possession of the City and are not exempt from disclosure. A key issue that often arises is whether to produce non-exempt responsive "writings" that are solely in the 8-1 City Council Policy-Disclosure of City Council Members' Emails and Correspondence Page 2 of 6 March 4, 2014 possession of City Council members and are not within the possession of the City or its Staff. Council member emails raise thorny questions under the CPRA. A case decided by a trial court in 2007, Tracy Press v. City of Tracy, highlighted the controversy between public agencies and those who make CPRA requests. A local newspaper sought email that was directed to or from an individual City of Tracy council member through her personal email address. At the trial court level, the City of Tracy successfully defended against producing the emails by arguing that individual council members do not constitute the legislative body of the City and, therefore, are not a "local agency" that is subject to disclosure requirements under the CPRA. Although that case was appealed, it was decided on a technical issue, and the appellate court did not reach the real meat of the issue: whether a city council member's email discussing city business must be produced by a city in response to a CPRA request, even though the email was sent or received using a councilmember's personal home computer and a non-city email address. The question becomes less gray if a councilmember uses a city-owned device or an email address provided by the City, making it more likely that the email is a public record. Since the Tracy case was decided, another case has been working its way through the courts involving similar issues. The plaintiff in Smith v. City of San Jose made a request for certain communications and emails of the mayor and council members of San Jose. When he did not receive the records requested, he filed his lawsuit, alleging that he was entitled to receive "emails, text messages and other electronic information relating to public business, regardless of whether they were created or received on the City owned computers and servers or the City Official's personal electronic devices." (Smith v. City of San Jose, 109CVa142 (Aug. 21, 2009) (Complaint).) The Superior Court judge rejected the argument raised by the city in Tracy, and ruled that emails sent or received by council members using private accounts on private electronic devices that contained information relating to the conduct of the public's business were public records. San Jose has appealed the ruling, and the matter is currently pending before the California Court of Appeal, Sixth District (H039498). Thus, as of this time, neither the CPRA nor any California court has provided binding guidance on this issue. DISCUSSION Pursuant to direction given by the City Council on February 7, 2012, the City has modified the way it retains email sent to City Council members at "[yourname]@rpv.com" (including cc@rpv.com). In the past, email sent to City Council 8-2 City Council Policy-Disclosure of City Council Members' Emails and Correspondence Page 3of6 March 4, 2014 members at "[yourname]@rpv.com" was redirected and was not retained on the City's server. However, this process has changed. Now, copies of emails received by Council members at "[yourname]@rpv.com" are retained indefinitely by the City, although those emails are still being redirected to private email accounts of Council members. Replies from Council Members to such emails, however, have not been routed through the City's server at this time, and are thus not retained by the City, although the City's new system now allows Council Members to choose to route responses through the City's server. Staff and the City Attorney's Office are recommending that the City Council establish a formal policy to address the production of City Council emails and other documents that are solely in the possession of individual Council Members in response to public records act requests. The policy that is attached to this report requires disclosure of email concerning City business that was sent to Council members through City email accounts (@rpv.com), along with all replies from Council Members to these emails, even if the replies were sent through or from each Council member's personal accounts. The rationale underlying this policy for producing Council members' emails is that emails sent to Council members through their City email accounts are presumptively public records, and any replies or subsequent email exchanges related to those "@rpv.com" emails are also presumptively public records. In other words, the policy basically follows the principle that a communication sent through City Hall is presumed to be a public record, even if only part of the communication flowed through the City's system. However, a written communication that is not sent or received through City Hall in whole or in part, even though it is in the possession of a Council member, is presumed to be a non-public record under this policy. Given the lack of state law guidance on this issue and the ruling in the Tracy case, we believe this approach complies with the CPRA. However, depending upon the ruling by the Court of Appeal in Smith v. City of San Jose, the proposed policy may need to be amended in the future to comply with a change in the law. Non-Email Communications Under the proposed policy, individual City Council members would produce to the City Attorney's office for review any communication that is not an email, if it is responsive to a public records request, the City did not retain a copy, and was: (1) Sent to or given to the Council member by the City; (2) Received by the Councilmember addressed care of City Hall; or 8-3 City Council Policy-Disclosure of City Council Members' Emails and Correspondence Page 4 of 6 March 4, 2014 (3) Sent to or given to the City by the Councilmember. The City Attorney's office will review the non-email communications to confirm that they relate to the City's business, are not exempt from disclosure under the CPRA, and are responsive to the request. Any non-email communication that fails one of those tests will not be produced. Email Communications In the event the City receives a CPRA request seeking Council member communications, under the proposed policy City staff would search the City's email server for responsive emails that went through an "@rpv.com" email address. Council members would not produce any emails exclusively in their possession that meet all of these parameters: 1. The email was not sent to or copied to a City email address, i.e. "[name]@rpv.com" or "cc@rpv.com;" 2. The email was not sent from or using a City email address, i.e. "[name ]@rpv.com"; 3. The email was not routed through "@rpv.com" in any way when it was sent or received, and 4. The email was not part of an email chain responding to an email received through a City email address, i.e. "[name]@rpv.com" or "cc@rpv.com." Applying these rules, any email sent or received by a City Council member exclusively using his home or business email address, that was never routed through the City's email system and was never sent to, received from, or copied to someone with a "[name]@rpv.com" or "cc@rpv.com" City email address, would not be produced to the City Attorney's office for review, although they would be preserved by each Council member if responsive to a public records request. For responsive emails that are part of an email chain, every email in the email chain must pass this test; if it does not, the Council member would provide it to the City Attorney's office for review if the City does not already have a copy. Further, under the proposed policy, any emails exclusively in the possession of individual City Council members would be produced by each City Council member for review by the City Attorney's office, if the emails are responsive to a public records request and meet either of these two tests: a. The email was sent to or through the City Council email address, "cc@rpv.com," regardless of the way it was ultimately downloaded or received by the City 8-4 City Council Policy-Disclosure of City Council Members' Emails and Correspondence Page 5of6 March 4, 2014 Council member, the City Council member replied using a non-City email address, and the reply email was not sent to an "@rpv.com" email address. b. The email was sent to or through the individual Council member's City email address, "[yourname]@rpv.com," regardless of the way it was ultimately downloaded or received by the City Council member, the City Council member replied using a non-City email address, and the reply email was not sent to an "@rpv.com" email address. The phrase "using a non-City email address" includes email sent through the Council member's personal or business ISP provider or email account, when it is responding to an email sent to or through "cc@rpv.com" or "[yourname]@rpv.com." Because litigation could result from a public records request, City Council Members would continue to be obligated under the policy to retain and preserve all responsive emails in their current form and format for the time period covered by a public records request, even if the emails do not have to be provided to the City Attorney for review under this policy. The policy recognizes that the City has, for the past two years, been preserving on the City's email server all email that was sent or received through an "@rpv.com" email address. City staff will collect email sent through the City's email server that is responsive to a public records request. In the event a public records request seeks City Council member email that precedes the implementation of the email server, Council members would work with the City Attorney's office to produce for review any email in their possession that went through an "@rpv.com" email address in whole or in part. The policy also recognizes that there are various methods by which a City Council member may access their email addressed to a "cc@rpv.com" or "[yourname]@rpv.com" email address, and that a City Council member may reply to that email through a non-City email address. Regardless of whether a Council Member accesses these emails through a web interface, downloads to a home email or business email program (e.g., MS Outlook), or receives it as a "forwarded" message to the Council Member's home or business email address, if it originally was sent to cc@rpv.com or "[yourname]@rpv.com", and the Council member replies using a non- City email address, and the reply email was not sent to an "@rpv.com" email address, these emails would be produced for review by the City Attorney's office. Just as with non-email communications, the City Attorney's office will review the emails to confirm that they relate to the City's business, are not exempt from disclosure under the CPRA, and are responsive to the public records request. Any emails that fail one of those tests will not be produced. 8-5 City Council Policy-Disclosure of City Council Members' Emails and Correspondence Page 6of6 March 4, 2014 CONCLUSION To summarize, the proposed policy provides the rules that will be followed with respect to the production of communications and documents that are within the scope of a public records request but are solely within the possession of individual City Council Members. The proposed policy conforms to the decision of the Superior court in the City of Tracy case. Of course, if the Smith v. City of San Jose case or another case is decided by the Court of Appeal in a manner that differs from this policy, or if the Legislature amends the CPRA to address the issue of Council emails and correspondence that are not in a city's possession, the policy will need to be revised to comply with the new statute or court opinion. Additionally, in the event the City Council determines that the City should cease preserving all City email that goes through an "@rpv.com" email address, this policy will require revision. Attachment: Draft Policy 8-6 CITY COUNCIL POLICY (Proposed) NUMBER: DATE ADOPTED/AMENDED: 3/4/2014 SUBJECT: DISCLOSURE OF CITY COUNCIL MEMBERS' EMAILS AND OTHER CORRESPONDENCE SOLELY IN THE POSSESSION OF CITY COUNCIL MEMBERS IN RESPONSE TO PUBLIC RECORDS ACT REQUESTS POLICY: This pblicy requires disclosure of non-exempt email concerning City business that was sent to Council members through City email accounts (@rpv.com), along with all replies from Council Members to these emails, even if the replies were sent through or from each Council member's personal accounts. The rationale underlying this policy for producing Council members' emails is that emails sent to Council members through their City email accounts are presumptively public records, and any replies or subsequent email exchanges related to those "@rpv.com" emails are also presumptively public records. In other words, the policy basically follows the principle that a communication sent through City Hall is presumed to be a public record, even if only part of the . communication flowed through the City's system. Additionally, even though a communication may be a public record, it may be exempt from disclosure under the Public Records Act, and this policy does not require the disclosure of exempt emails. However, a written communication that is not sent or received through City Hall in whole or in part, even though it is in the possession of a Council member, is presumed to be a non-public record and is thus not subject to disclosure under the Public Records Act. Non-Email Communications Individual City Council members shall produce to the City Attorney's office for review any communication that is not an email, if it is responsive to a public records request, the City did not retain a copy, and was: (1) Sent to or given to the Councilmember by the City; (2) Received by the Councilmember addressed care of City Hall; or (3) Sent to or given to the City by the Councilmember. The City Attorney's office will review the non-email communications to confirm that they relate to the City's business, are not exempt from disclosure under the CPRA, 8-7 and are responsive to the request. Any non-email communication that fails one of those tests will not be produced. Email Communications In the event the City receives a CPRA request seeking Council member communications, City staff will search the City's email server for responsive emails that went through an "@rpv.com" email address. Council members will not produce any emails exclusively in their possession that meet fill of these parameters: 1. The email was not sent to or copied to a City email address, i.e. "[name]@rpv.com" or "cc@rpv.com;" · 2. The email was not sent from or using a City email address, i.e. "[name]@rpv.com"; 3. The email was not routed through "@rpv.com" in any way when it was sent or received, and 4. The email was not part of an email chain responding to an email received through a City email address, i.e. "[name]@rpv.com" or "cc@rpv.com." Applying these rules, any email sent or received by a City Council member exclusively using his home or business email address, that was never routed · through the City's email system and was never sent to, received from, or copied to someone with a "[name]@rpv.com" or "cc@rpv.com" City email address, would not be produced to the City Attorney's office for review, although they would be preserved by each Council member if responsive to a public records request. For responsive emails that are part of an email chain, every email in the email chain must pass this test; if it does not, the Council member would provide it to the City Attorney's office for review if the City does not already have a copy. Further, any emails exclusively in the possession of individual City Council members shall be produced by each City Council member for review by the City Attorney's office, if the emails are responsive to a public records request and meet either of these two tests: a. The email was sent to or through the City Council email address, "cc@rpv.com," regardless of the way it was ultimately downloaded or received by the City Council member, the City Council member replied using a non-City email address, and the reply email was not sent to an "@rpv.com" email address. b. The email was sent to or through the individual Council member's City email address, "[yourname]@rpv.com," regardless of the way it was 8-8 ultimately downloaded or received by the City Council member, the City Council member replied using a non-City email address, and the reply email was not sent to an "@rpv.com" email address. The phrase "using a non-City email address" includes email sent through the Council member's personal or business ISP provider or email account, when it is responding to an email sent to or through "cc@rpv.com" or "[yourname]@rpv.com." Because litigation could result from a public records request, City Council Members would continue to be obligated to retain and preserve all responsive emails in their current form and format for the time period covered by a public records request, even if the emails do not have to be provided to the City Attorney for review under this policy. The policy recognizes that the City has, for the past two years, been preserving on the City's email server all email that was sent or received through an "@rpv.com" email address. City staff will collect email sent through the City's email server that is responsive to a public records request. In the event a public records request seeks City Council member email that precedes the implementation of the email server, Council members shall work with the City Attorney's office to produce for review any email in their possession that went through an "@rpv.com" email address in whole or in part. The policy also recognizes that there are various methods by which a City · Council member may access their email addressed to a "cc@rpv.com" or "[yourname]@rpv.com" email address, and that a City Council member may reply to that email through a non-City email address. Regardless of whether a Council Member accesses these emails through a web interface, downloads to a home email or business email program (e.g., MS Outlook), or receives it as a "forwarded" message to the Council Member's home or business email address, if it originally was sent to cc@rpv.com or "[yourname]@rpv.com", and the Council member replies using a non-City email address, and the reply email was not sent to an "@rpv.com" email address, these emails would be produced for review by the City Attorney's office. Just as with non-email communications, the City Attorney's office will review the emails to confirm that they relate to the City's business, are not exempt from disclosure under the CPRA, and are responsive to the public records request. Any emails that fail one of those tests will not be produced. BACKGROUND: Requests for public records made pursuant to the California Public Records Act ("CPRA") have increased dramatically over the last several years. Requests for 8-9 public records often include emails and correspondence to and from City Council Members regarding a variety of topics. The CPRA defines local public records as follows: "Public records" includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. " (Government Code Section 6252(e).) The CPRA requires the City to disclose upon request public records that are within the possession of the City and are not exempt from disclosure. A key issue that often arises is whether to produce non-exempt responsive "writings" that are solely in the possession of City Council members and are not within the possession of the City or its Staff. The policy set forth above addresses that issue. The policy provides the rules that will be followed with respect to the production of communications and documents that are within the scope of a public records request but are solely within the possession of individual City Council Members. This policy conforms to the decision of the Superior court in the City of Tracy case. If the Smith v. City of San Jose case or another case is decided by the Court of Appeal in a manner that differs from this policy, or if the Legislature amends the CPRA to address the issue of Council emails and .correspondence that are not in a city's possession, this policy will need to be revised to comply with the new statute or court opinion. Additionally, in the event the City Council determines that the City should cease preserving all City email that goes through an "@rpv.com" email address, this policy will require revision. 8-10