A Question of Missing Energy Commission Records
In July, we detailed our attempts to access records pertaining to San Diego Gas & Electric’s procurement plan as the utility tried to secure hasty approval of the plan from the California Public Utilities Commission. The plan proposed to contract with a polluting fossil fuel power plant at the expense of clean energy resources in San Diego. After sending a public records request to the California Energy Commission, we learned that unknown numbers of e-mails related to the procurement plan would never be produced. Why were the records missing? They were routinely purged from the agency’s mailboxes, casualties of the California Energy Commission’s rapid 90-day e-mail deletion policy.
The Energy Commission’s policy notes that even though its e-mail system is intended for official state business, less than 5 percent of all e-mail messages should be retained beyond 90 days. The policy strictly prohibits saving messages, with exceptions only for current or reasonably foreseeable litigation. Routine deletion occurs even though e-mails qualify under the broad definition of “state records” and agencies cannot delete state records unless the Secretary of State determines that the record has no further value.
The Commission’s guidelines for record retention of paper documents provide far more instruction than its e-mail policy. The guidelines stipulate which documents and reports are to be retained based on their subject matter, and specify the length of time records are to be retained (ranging from two years to indefinitely) and where the records are to be held (the agency or the State Records Center). Yet, this more thorough set of guidelines still has flaws: it mentions that e-mails are retained for only 90 days, rather than the longer period of time that the agency maintains other documents. No reasoning is provided as to why e-mail, which often contains substantive discussions of issues at hand, does not qualify for the same maintenance schedules as paper documents that are also subject to public review.
The recent debacle involving the president of the California Public Utilities Commission’s e-mails with Pacific Gas and Electric Company highlights the importance of e-mail retention as it shows how electronic correspondence sheds light on the subjective thoughts of public officials.
An editorial in SFGate reports that e-mails between the commission’s President Michael Peevey, Peevey’s staff, and PG&E illustrated the close (and possibly unethical) relationship that regulators may have with the industry they oversee. Conversations ranged from public relations advice from Peevey to PG&E about ongoing enforcement actions, advice from Peevey’s staff on avoiding public information requests, and even a response from a PG&E official to the regulator saying, “love you.” San Bruno Mayor Jim Ruane has called for Peevey to be removed from his position as commission president and head of the proceedings that will determine if PG&E should be fined for safety violations in the deadly September 2010 pipeline explosion.
The California Energy Commission’s e-mail retention policy is representative of the recent trend of government agencies, cities, and counties switching to increasingly brief periods of time before electronic correspondence is deleted. Investigations by the San Diego Union Tribune and Bakersfield Californian found required e-mail retention time ranged from permanent retention to no retention requirement at all. Agencies justify the policies by detailing the time and resources required to sift through thousands of e-mails; however, the advent of computers has made searching for specific words or phrases far more efficient than the paper searches of decades past, casting doubt upon arguments in favor of destruction for convenience.
Some cities have begun relying on a 30-year-old opinion from the California Attorney General that focused on cassette recordings. More modern guidance is needed from the State to resolve this growing problem. The legislature could establish consistent retention timelines, or the Attorney General could release an updated opinion tailored specifically to e-mail retention. In addition, agencies themselves can and should expand the length of time that e-mail messages are retained. E-mail retention policies should be at least as strong as the general records retention guidelines to which an agency adheres.
Until the state addresses this issue, government agencies will continue to weaken the public’s right to information as they destroy pertinent documents before public records searches commence. More-straightforward e-mail retention policies will preserve the Public Records Act as a way to ensure that the public is served by an open and honest government.