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Home My WebLink About02/21/2012 Staff: City Council Members: Rhonda Smiley, Assistant to the City Manager Sue Benham, Chair Jacquie Sullivan Rudy Salas Special Meeting of the Legislative and Litigation Committee of the City Council – City of Bakersfield Tuesday, February 21, 2012 12:00 p.m. City Hall North First Floor – Conference Room A 1600 Truxtun Avenue, Bakersfield CA 93301 A G E N D A 1. ROLL CALL 2. ADOPT OCTOBER 24, 2011 AGENDA SUMMARY REPORT 3. PUBLIC STATEMENTS 4. DEFERRED BUSINESS 5. NEW BUSINESS A. Discussion and Recommendation Rega rding the Ordinance Prohibiting Parking at Bus Stops – Gennaro / Underwood B. Discussion and Recommendation Regarding Electronic Communications – Gennaro / Tandy C. Discussion and Recommendation Rega rding the 2012 Committee Calendar – Smiley 6. COMMITTEE COMMENTS 7. ADJOURNMENT City Council Members: Rhonda Smiley, Assistant to the City Manager Sue Benham, Chair Jacquie Sullivan Rudy Salas AGENDA SUMMARY REPORT Regular Meeting of the LEGISLATIVE AND LITIGATION COMMITTEE Monday, October 24, 2011 - 12:00 p.m. City Hall North First Floor – Conference Room A 1600 Truxtun Avenue, Bakersfield, CA 93301 The meeting was called to order at 12:00 PM. 1. ROLL CALL Present: Councilmember Sue Benham, Chair Councilmember Jacquie Sullivan Councilmember Rudy Salas Staff Present: Rhonda Smiley, Asst. to the City Manager Ginny Gennaro, City Attorney Chris Huot, Administrative Analyst Jessalee Talley, Associate Attorney Roberta Gafford, City Clerk Andrew Heglund, Associate Attorney Nelson Smith, Finance Director Greg Williamson, Chief of Police 2. ADOPT JUNE 20, 2011 AGENDA SUMMARY REPORT Adopted as submitted 3. PUBLIC STATEMENTS None Legislative and Litigation Committee Agenda Summary Report October 24, 2011 Page 2 4. NEW BUSINESS A. Discussion Regarding Possible Adoption of a Council Policy Governing Electronic Communication during Public Meetings – Gennaro City Attorney Ginny Gennaro stated Mayor Hall requested staff prepare information regarding the usage of electronic devices, such as cell phones, smart phones, laptops, and ipads, during Council and Committee meetings, including functions such as texting, instant messaging, tweeting, and e-mailing. This policy pertains to using electronic devices and their functions to communicate with colleagues, individuals at any public meeting, and with individuals no t present at the meeting. Public officials using electronic devices, including those previously mentioned, to discuss a topic related to Government business during a pu blic meeting, may be in violation of the Brown Act, which states public business needs to be conducted in public. Such use may expose the City to potential litigation. This includes devices paid for personally by the public official and any device provided by the city or government agency to the public official. City Attorney Gennaro provided the following three hypothetical examples: 1) A Councilmember uses an electronic device to communicate with another Councilmember while sitting at the dais, with the public unaware. This could result in formulating an opinion among the majority of the Council without the public knowing about it and would be in violation of the Brown Act. 2) Any communication through electronic devices regarding an item not posted on an agenda 72 hours prior to a public meeting violates the Brown Act, because others cannot participate, hear, or see members of the Legislative Body doing so. 3) Communication through electronic devices during a Public Hearing violates the requesting party’s due process rights, as members of the Government body can appear distracted and, could be receivin g influential information not available at the meeting from colleagues, individuals at the meeting, or others not present at the meeting. Such actions could render the government body’s final decision invalid. City Attorney Gennaro stated several cities in the State of California, including the City of Huntington Beach, San Jose, Gilroy, Saratoga, and Portola Valley have created electronic communication policies, a ll of which were all reviewed by staff. She also stated that staff has compiled a draft policy for the Committee’s consideration. Committee Chair Sue Benham thanked staff for the presentation and thorough work on creating a very simple and straightforward policy. Committee member Jacquie Sullivan agreed with Committee Chair Benham. Committee member Rudy Salas asked if Policy #1 of the proposed Council policy prohibited electronic communication between Councilmembers and members of the public regarding any item on a public agenda. Legislative and Litigation Committee Agenda Summary Report October 24, 2011 Page 3 City Attorney Gennaro clarified that the policy would prohibit the use of all electronic communication during a public meeting. In case of an emergency during a public meeting, the Councilmember would excuse him or herself from the dais to the lobby to address the emergency. During a public hearing, Council would need to adjourn the hearing. Committee member Salas asked if this would require the electronic device be turned off all together. City Attorney Gennaro stated that, depending on the policy, the electronic device can be turned to silent and, in an event of an emergency, the individual would excuse themselves from the dais. Committee member Salas asked if the policy would also prohibit electronic devices used to take notes to refer to later or to review previous conversations regarding a certain item. City Attorney Gennaro stated the current draft policy would prohibit this kind of action, unless the individual would provide a copy of what he or she may be reviewing to the Clerk for public access to such information. In the event of records request for such information, the individual wo uld need to provide it. If that individual refused or didn’t have the information to provide, the City would be liable for the violation, not the individual. Committee member Salas also asked if tweets or e-mails are received during a public meeting, if it would it be necessary to print and provide them to the Clerk for retention, as well. City Attorney Gennaro stated that with the current draft policy, such a situation would not happen, because all electronic device s would be turned off. However, in a hypothetical situation, the person receiving an e-mail or tweet, would need to interrupt the conversation taking place and disclose they have received such an item and then print and provide it to the Clerk. Committee member Jacquie Sullivan made a motion to have the full Council review the draft policy governing electronic co mmunication during public meetings for consideration. The motion was unanimously approved. 5. COMMITTEE COMMENTS None 6. ADJOURNMENT The meeting adjourned at 12:24 cc: Honorable Mayor and City Council CITY OF BAKERSFIELD MEMORANDUM TO: Legislative and Litigation Committee Sue Benham, Chair Rudy Salas Jacquie Sullivan FROM: Raul Rojas, Public Works Director DATE: February 16, 2012 SUBJECT: GET Bus Reorganization / “No Parking at Bus Stop” Ordinance Golden Empire Transit (GET) is preparing to undertake a long Range Reorganization Plan, which will include the elimination of some bus stops, and the addition of bus stops in new locations. Currently, there are approximately 650 existing bus stops within the City limits. Approximately 400 of those will be eliminated, and approximately 200 stops will be added at new locations, bringing the new total bus stops in the City limits to approximately 450. GET anticipates these changes to take place in Fall, 2012. Staff has contacted GET to request a list of both the existing bus stops that will remain after the reorganization (approximately 250 stops) and the location of the 200 new stops. The City will work with GET to identify those stops whic h are located along the roadways that currently allow on-street parking. According to GET’s design manual, they recommend 130 feet of “no parking” zone for a typical 40 foot bus stop. Along roadways that currently allow parking, that is the equivalent of six normal sized vehicle parking spaces. Because of the diversity of the street types within the City of Bakersfield with proposed bus stops, many area residences and businesses would be greatly impacted if every bus stop was signed as a no parking zone. Therefore, staff will work with GET to identify which existing and new bu s stops should be appropriately designated as “no parking” zones in order to accommodate those with special needs. Going forward, should there be additional requests for signage at bus stops in the future, they can be evaluated on a case-by-case basis. Under California State law, only signs are requ ired; it would be redundant to have both “No Parking” signs and red painted curb at each bus stop location. Currently, when GET adds a bus stop or moves an existing stop, the City of Bakersfield absorbs the cost and installs all applicable traffic signs. During initial discussions regarding the route reorganization plan, GET has expressed a willingness to assist the City of Bakersfield with the costs of additional signage for the bus stops. However, the level of participation is unknown at this time. Staff will continue to work with GET to identify the appropriate stops to be signed, as well as the additional costs that may be incurred. M E M O R A N D U M CITY ATTORNEY February 16, 2012 TO: LEGISLATIVE AND LITIGATION COMMITTEE Sue Benham, Chair Jacquie Sullivan Rudy Salas FROM: VIRGINIA GENNARO, CITY ATTORNEY VG SUBJECT: BUS STOP ORDINANCE _____________________________________________________________________________ At the February 1, 2012 City Council meeting, Indep endent Living Center of Kern County requested that Bakersfield enact an ordinanc e modeled after the Berkeley ordinance that would prohibit parking in f ront of bus stops. This memo discusses the current ordinances of Bakersfield and Berkeley. Current Law (Bakersfield): The Bakersfield Municipal Code has two sections re gulating parking in bus zones: - BMC 10.32.020(A)(1) states that “[r]ed means no sto pping, standing or parking at any time; except that a bus may stop in a red zone marked or signed as a bus zone,…”; and - BMC 10.36.030(C) states, “[t]he traffic authority s hall cause to be painted a red line stenciled with white letters ‘NO STANDIN G,’ together with the words, ‘BUS ZONE,’ on the tops of all curbs and pla ces specified as bus zones.” While these ordinances are not artfully written, th ey prohibit parking at every bus stop if the curb is painted red and marked with the words “BUS ZONE.” However, not every bus stop in Bakersfield is currently mark ed or painted red. Current Law (Berkeley): Berkeley’s Code gives the City Traffic Engineer the authority to designate coach zones (Berkeley’s code defines coach as motor bus o r coach) by painting the curb red or by placing signs. (Berkeley Municipal Code § 14.44 .060.) It also makes it unlawful to park in a coach zone provided that the zone is designated a coach zone by a sign. Virginia Gennaro, City Attorney February 16, 2012 Page 2 _________________________________ Comparison: The Bakersfield and Berkeley codes are very similar in terms of effect, but there are a few differences in terms of wording and forma t. First, Berkeley’s code is easier to read and understand. In addition, Berkele y’s bus stop regulation is contained in one code section and requires the curb to be painted red or “No Parking” signs installed, while Bakersfield’s requi res both a red line and wording. The BMC sections and the Berkeley Code section are attached for comparison. Conclusion: The City Attorney’s Office looks for direction from The Committee. VG:lsc S:\COUNCIL\Committee\LEG & LIT\11-12\BusStopOrdinanc e.docx M E M O R A N D U M CITY ATTORNEY February 16, 2012 TO: LEGISLATIVE AND LITIGATION COMMITTEE Sue Benham, Chair Jacquie Sullivan Rudy Salas FROM: VIRGINIA GENNARO, CITY ATTORNEY VG SUBJECT: BUS STOP ORDINANCE _____________________________________________________________________________ At the February 1, 2012 City Council meeting, Indep endent Living Center of Kern County requested that Bakersfield enact an ordinanc e modeled after the Berkeley ordinance that would prohibit parking in f ront of bus stops. This memo discusses the current ordinances of Bakersfield and Berkeley. Current Law (Bakersfield): The Bakersfield Municipal Code has two sections re gulating parking in bus zones: - BMC 10.32.020(A)(1) states that “[r]ed means no sto pping, standing or parking at any time; except that a bus may stop in a red zone marked or signed as a bus zone,…”; and - BMC 10.36.030(C) states, “[t]he traffic authority s hall cause to be painted a red line stenciled with white letters ‘NO STANDIN G,’ together with the words, ‘BUS ZONE,’ on the tops of all curbs and pla ces specified as bus zones.” While these ordinances are not artfully written, th ey prohibit parking at every bus stop if the curb is painted red and marked with the words “BUS ZONE.” However, not every bus stop in Bakersfield is currently mark ed or painted red. Current Law (Berkeley): Berkeley’s Code gives the City Traffic Engineer the authority to designate coach zones (Berkeley’s code defines coach as motor bus o r coach) by painting the curb red or by placing signs. (Berkeley Municipal Code § 14.44 .060.) It also makes it unlawful to park in a coach zone provided that the zone is designated a coach zone by a sign. Virginia Gennaro, City Attorney February 16, 2012 Page 2 _________________________________ Comparison: The Bakersfield and Berkeley codes are very similar in terms of effect, but there are a few differences in terms of wording and forma t. First, Berkeley’s code is easier to read and understand. In addition, Berkele y’s bus stop regulation is contained in one code section and requires the curb to be painted red or “No Parking” signs installed, while Bakersfield’s requi res both a red line and wording. The BMC sections and the Berkeley Code section are attached for comparison. Conclusion: The City Attorney’s Office looks for direction from The Committee. VG:lsc S:\COUNCIL\Committee\LEG & LIT\11-12\BusStopOrdinanc e.docx M E M O R A N D U M CITY ATTORNEY February 10, 2012 TO: LEGISLATIVE AND LITIGATION COMMITTEE Sue Benham, Chair Jacquie Sullivan Rudy Salas, Jr. FROM: VIRGINIA GENNARO, CITY ATTORNEY VG SUBJECT: E-MAIL RETENTION _____________________________________________________________________________ On June 29, 2011, Councilmember Salas requested tha t: • Staff investigate what e-mail policies have been im plemented by other Kern county cities and those cities of comparable s ize in the Southern San Joaquin Valley. On October 19, 2011, Councilmember Johnson requeste d that: • The Legislative and Litigation committee review and discuss the current e-mail policy, and gain clarity on the law. This memo supplements our response to the above que stions, provided in an earlier memorandum, and also concludes that: 1) the current e-mail policy of the City of Bakersfiel d is legal; and that 2) it is not legally prudent or practical to change ou r policy at this time. THE E-MAIL POLICY OF THE CITY OF BAKERSFIELD IS LEG AL The City Attorney is not aware of any law which req uires cities to retain e-mails or have a retention policy governing when e-mails can be destroyed. While there are several areas within State law, fou nd primarily in the Government Code, that refer to “records” or “city r ecords,” these sections are not on point, most were drafted before the widespre ad use of the computer, none of them discuss e-mails, and none of the secti ons, other than the Public Records Act, define “record.”1 1 Sections include Govt. Code §§ 6200 et seq. (Crime s Relating to Public Records) and 34090 (Miscellane ous). Virginia Gennaro, City Attorney February 10, 2012 Page 2 _________________________________ Being proactive, the City of Bakersfield set its ow n electronic communication policy several years ago. The policy contains a Re cord Management section that states in relevant part as follows: 1. The City does not back up or archive voice mail or E-Mail. The best way to ensure the long term retention of E-Mail is to print and retain it in hard copy files, store it in an E-Mail archive, or store it on the city Document Imaging System. 2. E-Mail may generate correspondence which may be rec ognized as official records in need of protection/retention in accordance with the California Public Records Act. Therefore, electron ically stored records such as electronic mail may be subject to retention requirements. Because the E-Mail system is not designed for long-term storage, it is not backed up. E-Mail which becomes an official rec ord should be printed out for filing or kept in the City document imaging system. It is the responsibility of staff to determine if an E-Ma il is an official record and is covered within scope of their department's r ecords retention schedule. Contact the City Clerk's Department for r etention standards. This policy is not in conflict with any Federal or State laws on the subject, and is consistent with a number of policies in other juris dictions.2 Also of interest is a recent article in the Daily Journal which notes the State’s absence in the area of record retention for local government and the freed om that cities have in formulating their own policies.3 THE PUBLIC RECORDS ACT The discussion of e-mails inevitably gets intertwin ed with a discussion of Freedom of Information or The California Public Records Act (herein PRA) because requesting parties often ask for copies of e-mails. Under the PRA, a “public record” includes “any writing containing informatio n relating to the conduct of the public's business prepared, owned, used, or ret ained by any state or local agency regardless of physical form or characteristi cs.”4 E-mails are contained within the definition of “writing” which includes “any handwriting, typewriting, printing, photostating, photographing, photocopying , transmitting by electronic mail or facsimile,….”5 It is important to note that the Public Records Act DOES NOT require cities to retain e-mails. It simply allows for the possibili ty that e-mails, as writings, may be subject to disclosure as potential public records. E-mails may fall under the definition of “public records” if they are available. We say “may” and “if” since: 2 Please see Exhibit A, retention schedules of other cities. 3 Please see Exhibit B, news article by Philip J. He ss from the Daily Journal . 4 Govt. Code § 6252(e). 5 Govt. Code § 6252(g). Virginia Gennaro, City Attorney February 10, 2012 Page 3 _________________________________ there is no law which requires that e-mails be reta ined; and e-mails, by definition, that do not relate to the c onduct of the public’s business are exempt from disclosure (see 6252(e)). There is not much guidance in the law that defines what documents qualify as “relating to the conduct of the public’s business.” There appears to be a historical line of cases that supports an argument that documents that are necessary or convenient to the discharge of an empl oyee’s official duty constitute a public record and that such determinat ion is subjective.6 Interestingly, even the State of California does not define which e-mails constitute a “public record.” Rather, the State’s retention schedule provides that “e-mail records that are classified as officia l records are subject to the individual department’s records retention schedules .” E-MAILS THAT ARE PUBLIC RECORDS MAY BE EXEMPT FROM DISCLOSURE Further complicating this discussion is that the la w provides a variety of reasons why e-mails which fall under the definition of “pub lic records” can be exempt from disclosure under the PRA, including e-mails th at “are not retained by the public agency in the ordinary course of business” (§6254 (a)). CONCLUSION The City has an electronic communication policy, wh ich happens to be consistent with other policies on the topic. While it is generally true that the Legislature has been unable to keep up with the fas t-pace of technology, the California Legislature appears to be ready to make changes in that it recently incorporated the internet with open government laws .7 Therefore, our recommendation is that the City not change its curr ent e-mail policy until there is more direction in the law. If the Committee desires to increase the retention period for e-mails, Staff requests an opportunity to address the practical co sts associated with such an option at a later meeting. VG:lsc Attachments S:\COUNCIL\Committee\LEG & LIT\11-12\EmailRetentionP olicies3.docx 6 See People v. Tomalty 14 Cal.App. 224 (Cal.App. 1910; City Council of Santa Monica v. Superior Court of L os Angeles County 204 Cal.App.2d 68 (Cal. App. 2d Dist. 1962); San Gabriel Tribune v. Superior Court 143 Cal.App.3d 762 (Cal. App. 2d Dist. 1983); Braun v. City of Taft 154 Cal.App.3d 332 (Cal. App. 5 th Dist. 1984); 64 Ops. Cal. Atty. Gen. 317 (1981). 7 For example, the Brown Act was recently revised to require local agencies to post the agenda on the l ocal agency’s internet website (Govt. Code § 54954.2). OFFICE OF THE CITY MANAGER MEMORANDUM February 17, 2012 TO: Honorable Mayor and City Council FROM: Alan Tandy, City Manager AT SUBJECT: E -Mail Retention ______________________________________________________________________________ In accordance with the request from Councilmember Salas , we conducted a survey of Kern County cities regarding their e -mail retention policies . Most have no policy, meaning, no required retention. Several did not respond to the inquiry. The only one that has a formal policy is Delano, and their policy is similar to ours. We also checked with the local Caltrans office, and were told that their employees are free to delete their e -mail anytime . They are also encouraged to not keep messages in order to sav e storage capacity on their computer system . If they do not save their e -mail, their system automatically deletes it after 90 days. We obtained information f r om the State of California Records Management Program (Cal RIM ), which assists State agencies in achieving an efficient records management program, providing leadership and oversight by establishing guidelines , includ ing the management of electronic records . Cal RIM approves and maintains all State agency record retention schedules. Cal RIM disting uishes between e -mails that are categorized as official records and those that are transitory , which are deleted after 90 days. That is a similar system to the one practiced in Bakersfield. Staff ran a spam count for the month of December and found that 1.04 million pieces of spam were received in that month and subsequently intercepted by the spam filter. Some get through the filter , however . Should our taxpayer pay to store them? Wh at purpose would that serve ? Honorable Mayor and City Council February 17, 2012 Page 2 All computers have a delete mechanis m and all employee s a re free to delete spam and other unnecessary e -mails. The automatic purge element in the system is really in place to avoid storage of e -mails that are no longer needed , but when employees do not get the time or simply forget to delet e them ,the system become inefficient for users citywide. The reason for enabling the automatic purge feature was due to the e -mail system being overloaded and unreasonably slow due to excessive , unnecessary storage. An archive feature associated with the previous software (Groupwise) contains 63 .8 million pages of stored e -mail messages . On inquiry , a great many of the employees who were found to have large numbers of items stor ed in the archive were unaware of it or had forgotten it was there. Paying for unnecessary storage is a waste of taxpayer dollars. City employees have multiple ways to save communications which have real value and which may actually be public records . Th os e methods incl ude hard copies , saving on the computer, and using L aserfi c he or other software . Through these avenues, s ubstantive communications are saved. It would not be practical or economical to impose mandatory storage of that which is not substantive. Summary The practices by the City of Bakersfield are legal and in accordance with the majority of jurisdictions in Kern County, our comparable cities’ group (as referenced in the attachment to the City Attorney’s memo from October ), and the State of California. No change is desirable or necessary. c c: Virginia Gennaro, City Attorney OFFICE OF THE CITY MANAGER MEMORANDUM February 17, 2012 TO: Alan Tandy, City Manager FROM: Chris Huot, Administrative Analyst III CH SUBJECT: Kern County Incorporated Cities E -mail Policies ______________________________________________________________________________ As requested by Councilmember Salas, staff attempted to contact the incorporated cities within Kern County to obtain information on each city’s e - mail policy. For each of the following cities I contacted the City Clerk’s Office and inquired about retention policies specific to e -mail. The following table summarizes my findings: City Policy Notes Arvin No Policy Tehachapi No Policy McFarland No Policy Ridgecrest No Policy Shafter No Policy Wasco No Policy Delano 30 Day Auto Delete See below California City No Response Contacted 2/9/12 Taft No Response Contacted 2/9/12 Maricopa No Response Contacted 2/9/12 The City of Delano was the only City which has a retention policy specific to e - mails. According to its Information Technology Policy, Section 3.4.1 E -mail Retention, individual users and/or department heads must determine if e -mails are “an official City record that must be retained in accordance with the City’s record retention program.” Under those circum stances the correspondence or document would retained for the period set forth per State law. The policy goes February 17, 2012 Page 2 S:\Chris Huot \Referrals \No. 261 E -mail Retention Policy_Salas \Kern County Cities E -mail Policy.docx on to state that “preliminary drafts, notes or interagency or intra -agency memoranda that are not retained by the City in the ordinary course of b usiness are generally not considered to be official City records subject to public disclosure.” Additionally, the City of Delano’s policy states “Users are responsible for the management of their mailboxes. Users should keep their inbox, sent items, and deleted it ems folder free of aged e -mail.” Furthermore, the policy outlines the City’s “a utomated mailbox policy”, which deletes all items in the user’s inbox, sent items, and deleted items folders automatically after 30 days. cc : Ginny Gennaro, City A ttorney MEMORANDUM CITY ATTORNEY'S OFFICE October 26, 2011 TO: HONORABLE MAYOR AND CITY COUNCIL r '""' FROM: VIRGINIA GENNARO. CITY ATTORNEY /nt~' JESSALEE TALLEY, ASSOCIATE CITY AlfdRNEYJ\ SUBJECT: E-MAIL RETENTION POUCY COUNCIL REFERRAL NO. 261 Councilmember Salas requested that staff investigate what e-mail policies have been implemented by other Kern County cities and those cities of comparable size in the southern San Joaquin Valley, and what options are available here. I. Introduction This memorandum addresses two issues: 1) whether all e-mails sent and received by City personnel are "public records," and 2) whether all e-mails must be retained for a minimum of two years. II. Not all e-mails preparedr owned, used or retained by the City are "public records." A public record is 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." 1 A "writing" is "any handwriting, typewriting, printing ... transmitting by electronic mail or facsimile ... and any record thereby created, regardless of the manner in which the record has been stored."2 "The mere custody of a writing by a public agency does not make it a public record, but if a record is kept by an officer because it is necessary or convenient to the discharge of his official duty, [then] it is a public record."3 There is no question that an e-mail is a "writing." However, this characterization does not automatically make it a "public record." As the definition states, the writing must also contain information "relating to the conduct 1 Gov. Code§ 6252(e)(emphasis added). 2 Gov. Code§ 6252{g). 3 Broun v. City ofT aft (1984) 154 Coi.App.3d 332, 340 (emphasis added). !n this case, the Court held that two !etters -one regarding an appointment to a City position and the other rescinding that appointment -and the salary card of a public employee were public records. HONORABLE MAYOR AND CITY COUNCIL October 26, 2011 Page2 of the public's business." Absent this type of information, an e-mail is not subject to the Public Records Act. More importantly, mere possession of e-malls by the City does not transform them into public records. An e-mail only becomes a public record if lt is "kept by an officer because it is necessary or convenient to the discharge of his official duty." This seems to indicate that the public officer decides if and when an e-mail should be retained. As the attached matrix showsA the cities that have e-mail retention policies leave the decision on whether to retain an e-mail to the discretion of the employees. Therefore, not all e-mails are subject to the Public Records Act. Only those a-mails containing information relating to the public's business, and those a-mails which are "necessary or convenient" to the discharge of public duties, are disclosable {unless exempt). Ill. Only e-mails deemed to be "public records" should be retained for two years. Government Code § 34090(d),S which governs the retention of records, is usually cited for the proposition that all records less than two years old must be retained. However, "records" does not cover every, single writing in the possession of the City. Rather, a record is within the purview of section 34090 if (1) it is required to be kept by law, or (2) if it is necessary or convenient to the discharge of the public officer's duties and was made or retained for the purpose of preserving its informational content for future reference.6 The first definition does not apply in this instance because there is no California law nor Attorney General opinion mandating retention of all e-mails. As for the second definition, the question essentially is: Is the e-mail a public record? As previously discussed, not all e-mails are public records; some are junk, SP AM, or purely personal communications. Only those e-maiis which an employee deems important to preserve (presumably because the e-mail may be necessary for future reference) are required to be retained by section 34090. Therefore, as to those e-maiis, the retention period is a minimum of two years. 4 See Exhibit A, 5 " ... This section does nof authorize the destruciion of... (d) Records less than two years o!d." 6 64 Ops. Cal. Atty. Gen. 317,326 {1981} (emphasis added). The Attorney General, in this opinion, discussed whether an authorized tape recording of a city council meeting made by the city clerk to facilitate the preparation of the minutes may be destroyed at any time. The Attorney General answered in the affirmative. HONORABLE MAYOR AND CITY COUNCIL October 26, 2011 Page3 A. Not all e-mails deemed to be "public recordsn are disclosable. Even though an e-mail is a public record, it is not automatically required to be disclosed. Pursuant to Government Code§ 6254(a)," ... nothing in this chapter shall be construed to require disclosure of records that are any of the following: (a} Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the pub!ic agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure .... " Therefore, e-mails deemed to be public records, which are not retained by the City, and are drafts, notes or inter-agency memos, are not subject to disclosure. IV. Conclusion California law does not mandate public agencies to retain all e-mails. Only those e-mails deemed to be "public records" are required to be kept for a minimum of two years. Since a!l e-mails related to the conduct of the public's business are routinely retained per section 34090, then the City's policy of purging transitory or non-public e-mails after a reasonable period of time is not in violation of law. JT:lsc Attachment cc: Alan Tandy, City Manager Roberta Gafford, City Clerk S:\COlJNCIL\Relerrals\ 11· i 2 Reterrals\2mai1Re!cntion.docx DOCUMENTS HANDED OUT AT THE COMMITTEE MEETING Bakersfield Municipal Code 10.32.020 Colors and meanings of signs and markings A. The traffic authority is authorized, subject to the provisions and limitations of this division, to place, and when required in this division shall place, the following signs, or curb markings, or other devices to indicate parking or standing regulations, and said signs, or curb markings or other devices shall have the meanings as set forth in this section: 1. Red means no stopping, standing or parking at any time; except that a bus may stop in a red zone marked or signed as a bus zone, and police vehicles may stop in red zones marked or signed "Police Zone." 10.36.030 Bus zones-Established-Signs A. The traffic authority is authorized to establish bus zones opposite curb space for the loading and unloading of buses or common carriers of passengers engaged in local transportation and to determine the location thereof. B. No bus zone shall be established opposite and to the right of a safety zone. C. The traffic authority shall cause to be painted a red line stenciled with white letters "NO STANDING," together with the words, "BUS ZONE," on the tops of all curbs and places specified as bus zones. (Prior code § 11.04.560) Berkeley Municipal Code 14.44.060 Coach zones A. The City Traffic Engineer is authorized to establish coach zones opposite curb space for the loading and unloading of coaches and to determine the location thereof subject to the directives and limitations set forth herein. B. The City Traffic Engineer shall designate coach zones by painting the curb red or by placing and maintaining appropriate signs. C. It is unlawful for the operator of any vehicle except a coach to stop, stand or park said vehicle in a coach zone, provided that if a coach zone is designated by a sign or signs and such sign or signs indicate that said zone is a coach zone only during specified hours, such prohibition shall apply only during such specified hours. 14.04.040 Coach. Any motor bus, motor coach, trackless trolley, or passenger stage used as a common carrier of passengers. (Ord. 3262-NS § 1.3, 1952) PUBLIC STATEMENTS SPEAKER'S CARD Legislative and Litigation Committee of the City Council Committee Meefing Dale [)/;;?:{~d. You are invited to address the Committee under Public Statements on any subject that is not listed on the Committee Agenda. All other statements will be allowed at the time the Committee addresses the item. No action will be taken on any item not on the Agenda; this Committee will gather information and report back to the City Council. Public statements are limited to three (3) minutes per speaker. The Committee may, by simple majority vote, waive the time limit. Please fill out a Speaker's Card and present it to the Committee Chair: Councilmember Sue Benham Address: Phone: Subject: PUBLIC STATEMENTS SPEAKER'S CARD Legislative and Litigation Committee of the City Council Committee Meeting Date /h -elf-1 2.r You are invited to address the Committee under Public Statements on any subject that is not listed on the Committee Agenda. All other statements will be allowed at the time the Committee addresses the item. No action will be taken on any item not on the Agenda; this Committee will gather information and report back to the City Council. Public statements are li~ited to three {3) minutes per speaker. The Committee may, by simple majority vote, waive the time limit. Please fill out a Speaker's Card and present it to the Committee Chair: Councilmember Sue Benham Name £M1& LEGISLATIVE AND LITIGATION COMMITTEE TUESDAY, FEBRUARY 21,2012 ATTENDANCE LIST Organization Contact: Phone/ E-mail NftPl:) I/ vw /,Wf/"l.JJr u vt.(J c C\ I I I I LAO 1~ L.h