By Wes Venteicher, SACRAMENTO BEE

March 23, 2022

https://www.sacbee.com/news/politics-government/the-state-worker/article259638169.html

When the California Department of Insurance announced a plan to start deleting employees’ emails automatically after 180 days, an employee raised concerns that had nothing to do with scandals at the top of the department.

The employee worried instead that their work would suffer if they couldn’t pull up old emails related to past enforcement activities. The employee requested anonymity to discuss the proposal with The Sacramento Bee, fearing retaliation.

“Memory is not my strong suit,” said the employee, explaining the need to refer to emails. 

So when the department pushed ahead with the plan over employees’ objections, the employee became a whistleblower, contacting Consumer Watchdog, a Los Angeles-based nonprofit that’s in a legal fight with the department over public records.

Amid public scrutiny, the department pulled back the policy weeks after it went into effect in January, according to reporting from the San Diego Union-Tribune.

“The committee representing all branches of the Department on IT matters voted to withdraw the policy,” Insurance Department spokesman Gabriel Sanchez said in an email Tuesday. “The updated data and email retention policy was developed to manage an ever-growing number of records in compliance with state law.”

But the department still deletes other records in as little as 90 days under its records retention policy, and other state agencies delete emails and other records in as little as 90 days. 

Advocacy and trade groups, including Consumer Watchdog, California News Publishers, the First Amendment Coalition and Californians Aware, say short retention periods create risks that important records will be destroyed before members of the public have a chance to ask for them under the California Public Records Act.

“We have this ridiculous situation where records must be produced under the Constitution but they might be deleted before journalists or the public know about them,” said Jerry Flanagan, Consumer Watchdog’s litigation director.

The groups are supporting a legislative proposal that would require state agencies to preserve records for at least two years, the same length of time cities and counties are currently required to preserve records in California.

STATE AGENCIES DELETE RECORDS

Consumer Watchdog sued Insurance Commissioner Ricardo Lara in 2020 after Lara refused to provide emails and other records related to his meetings with campaign donors in response to a Public Records Act request. 

Lara has been under scrutiny for seeking out and accepting thousands of dollars in campaign contributions from insurance industry executives despite a campaign pledge not to do so.

The Insurance Department’s proposal would have required employees to set aside any emails they wanted to keep for more than 180 days. The whistleblower said it’s often not obvious in that amount of time which emails will be important later on.

After the whistleblower contacted Consumer Watchdog, the organization sent the department a letter with concerns over the auto-delete policy.

“The Department’s top priority throughout this process has been to have a policy for archiving and preserving records that serves the public interest and is workable for staff,” Sanchez, the department spokesman, said in an email. “The committee voted to withdraw this proposal entirely as it is not workable in implementation.”

While the department reversed course on the email policy, it still deletes some other records, including those related to “invitations, schedules, deadlines (and) contracts” in as little as 90 days, according to its records retention schedule. 

Other state agencies have similarly short retention periods. Agencies’ retention policies are posted in a database on a Secretary of State website.

The California Environmental Protection Agency directs employees to delete emails sent “primarily for the communication of informal information” in as little as 90 days, while directing employees to preserve some more “official” emails longer.

The California Public Employees’ Retirement System deletes general emails after six months unless employees select them for preservation, CalPERS spokesman Brad Pacheco said in an email. 

Some emails are identified for longer holds, and the system’s Investment Office keeps emails for seven years, Pacheco added.

In 2010, amid investigations of bribery and other misconduct by CalPERS CEO Fred Buenrostro and a former board member, the retirement system adopted a policy of deleting emails after just 60 days, the LA Times reported in 2011.

At the time, the retirement system said the since-retracted 60-day plan was aimed at eliminating obsolete records that were taking up server space.

Cal Fire directs employees to destroy some records related to fire safety inspections and burn permits after a year, according to policies on the Secretary of State’s website.

PUBLIC RECORDS LAW

Under current law, state agencies decide for themselves how long to hold onto records before destroying them. Retention periods range from a few months to several decades.

The new proposal supported by transparency advocates, Assembly Bill 2370, would require state agencies to preserve records for two years. The bill cleared the Assembly Judiciary Committee in a unanimous vote Tuesday.

Assemblyman Marc Levine, D-Greenbrae, introduced the proposal, saying in a news release that it could help “restore ethics and transparency” at the Insurance Department.

Levine is campaigning to replace Lara as insurance commissioner.

“We have a Public Records Act law that says that people should have access to records, and yet there’s no retention law to help protect access to those records,” Levine said in an interview. “This bill would make sure the Public Records Act is respected and the public has access to important information.”

The Legislature approved a proposal similar to Levine’s in its last session. That proposal, Assembly Bill 1184, would also have set a two-year minimum retention period for state agencies while adding other requirements for all public agencies in California.

Gov. Gavin Newsom vetoed that proposal, saying in a veto message that it would have caused a “dramatic increase in records-retention requirements, including associated personnel and data-management costs.”

Levine said his proposal would cost little, given how cheap hard drive and Cloud data storage has become.

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Wes Venteicher anchors The Bee’s popular State Worker coverage in the newspaper’s Capitol Bureau. He covers taxes, pensions, unions, state spending and California government. A Montana native, he reported on health care and politics in Chicago and Pittsburgh before joining The Bee in 2018.