Mendocino County Board of Supervisors repeal unlawful public records fees and roll out expedited email deletion policy

MENDOCINO Co., 5/9/23 — The Board of Supervisors voted unanimously Tuesday morning to repeal Ordinance 4507, which authorized county officials to violate state law as a cost-savings measure related to answering public records requests, less than a year after the controversial legislation was first proposed last June. But now they’re looking to reduce the costs associated with releasing public records through a new “email retention policy” authorizing staff to delete public records within six months of receipt. (Watch the full meeting here.)

“All email will be retained in the County email system for a period of six (6) months. After this time, emails will be disposed of unless they are specifically archived in accordance with the retention periods outlined in the subfolders described below,” Section 5.1 states. 

The subsequent text indicates that some records may need to be retained for up to 10 years, or on a permanent basis. It does not, however, provide guidance on what kinds of records will need to be retained for longer than six months. Rather, the new policy gives individual staff significant discretion in determining which public records get destroyed: “It is the responsibility of each employee to determine whether an email constitutes a record to retain, and to save any such record as necessary.”

Aside from cases in which County Counsel Christian Curtis orders the postponement of document destruction related to litigation, determining which emails get deleted and on what time frame will have to be done one department at a time. Curtis himself described that as a “heavy lift” — but the policy passed unanimously and without comment from the public. 

Supervisor Ted Williams (5th District) verbally acknowledged that the new email deletion guidelines are related to the repeal of Ord. 4507, which he referred to as a “public records tax.”

“This kind of gets at that,” Williams said. “If we store millions of records on a continual basis without additional capability to be able to parse and search, we’re setting ourselves up for failure.”

Later on in open session, the board voted unanimously to repeal the public records fees passed unanimously by the same board in July 2022. The supervisors did not disclose their rationale in open session, but Supervisor John Haschak (District 3) said in February that Ord. 4507 was not on “solid legal ground.” He made those statements after attending a workshop on public records presented by the Orange County Office of the County Counsel. 

Local discourse around the legality of the ordinance has revolved primarily around a 2020 decision by the California Supreme Court in National Lawyers Guild vs. City of Hayward where the court ruled that the California Public Records Act does not authorize California governments to assess fees for finding or redacting public records. In the Mendocino County Counsel’s defense of such fees, Curtis argued the law allowing counties to set and adjust a master fee schedule for government services (Government Code Section 54985) could be used as a work-around. 

The supervisors initially found that argument persuasive, but opted not to test it out in court after the First Amendment Coalition threatened litigation. It remains unclear whether county counsel’s argument could successfully challenge a California Supreme Court precedent set just three years earlier. The county’s plan for resolving public records requests left pending since Ord. 4507 went into effect last year also remains a mystery. 

Three people spoke in favor of repealing Ord. 4507 during public comment, including Carrie Shattuck, who encouraged the board to improve transparency by posting previously released public records on the county’s records portal. (Mendocino County currently requires an additional PRA to be filed in order to access previously published documents under most circumstances.)

4th District Supervisor Dan Gjerde strenuously objected, however, stating many of the public records requests are for county emails and publishing those might make Mendocino County the “laughingstock of the state.” During a contentious exchange with The Mendocino Voice publisher Kate Maxwell, Gjerde asked Maxwell to avoid encouraging any additional requests from the public.  

“If that’s the problem that you’re pointing to, it does make people think you’re not interested in transparency,” Maxwell said. “That’s the right of people to file public records requests.”

Maxwell added that public records requests for correspondence like text and email have uncovered corruption scandals throughout the region. 

The First Amendment Coalition and the American Civil Liberties Union of Northern California issued a statement acknowledging the repeal of the ordinance Tuesday afternoon. 

“It’s good to see that Mendocino finally did the right thing after starting off in the wrong direction,” wrote Chessie Thatcher, a senior staff attorney with ACLU Northern California. “This ordinance should never have been enacted, and the ACLU and FAC — joined by others in the community — were poised to challenge it.”

You can read the rest of their statement and our previous coverage below:

San Rafael, Calif. – Today the Mendocino County Board of Supervisors unanimously voted to repeal Ordinance No. 4507, which authorized the county to charge as much as $150/hour for staff time to locate, review, or redact documents people asked for under the California Public Records Act. The law, passed last July, received widespread condemnation from the public, journalists, and open government advocates. One local media organization, the Mendocino Voice, has been assessed fees in excess of $76,000 since the law was passed.

Mendocino was not the only county in California with an ordinance allowing illegal fees to be charged for public information. According to research by the  First Amendment Coalition and the ACLU of Northern California, seven other counties — Los Angeles, Shasta, Siskiyou, Calaveras, Tuolumne, Santa Cruz, and Ventura — have passed similar laws. 

The following can be attributed to David Loy, Legal Director, First Amendment Coalition:

“We’re glad the board of supervisors repealed this law. Public records belong to everyone no matter how wealthy. Democracy depends on freedom of information, but information is not public when only the rich can afford it. We hope other counties with similar laws will listen to the public and abolish these undemocratic laws.”

The following can be attributed to Chessie Thacher, Senior Staff Attorney for the American Civil Liberties Union of Northern California: 

“It’s good to see that Mendocino finally did the right thing after starting off in the wrong direction. This ordinance should never have been enacted, and the ACLU and FAC–joined by others in the community–were poised to challenge it. The government must provide public information to everyone with as few barriers as possible. When the government doesn’t do that, we have problems with access and equity.” 

Previous coverage:

• Editorial: Tell Mendocino County to rescind their unlawful public records fees
• Letter: We’re calling for Mendocino County to overturn the unlawful public records ordinance
• Letter from the publisher: Mendocino County wins “worst” for government transparency (opinion)
• Sunshine Week: national award names Mendocino County one of America’s “worst in government transparency”
• Mendocino County to charge fees for public records
• Free press advocates caution Mendocino County on new public records fee ordinance
• Open letter to Mendocino County supervisors: new public records fees will cost more than they save