Generally it is the holder of any record who decides whether to retain or destroy any record, subject to the applicable laws dealing generally with recordretention or potential evidence. Legal standards vary, but generally there is no obligation to retain documents as potential evidence unless you are on notice that the record may be needed as evidence in some reasonably anticipated litigation in the absence of a law requiring retention of the specific type of record. In California, the statute of limitations for personal injury or wrongful death is generally two years so civil litigation would not generally be anticipated after that. If a court or prosecutor decides the holder violated a legal duty under the specific facts then it may award sanctions or instigate criminal proceedings.
In my view, the legal answer to records being destroyed too quickly is through legislative determination of the minimum retention period as the effect is the same whether they are regularly purged to save storage costs or purged to avoid public scrutiny.
It is a subject of interest because I represent parties who litigate on both sides, and also use requests in other types of litigation. I am not giving any opinion as to whether the destruction is moral or ethical. The relevant issue to me is whether it is legal or not. The same as to whether withholding records created before 2019 is legal. Generally the agencies I deal with take the position that withholding such records is not permitted, and I agree with their legal analysis.
If they are like many public agencies,there was no systematic destruction of old files though the retention policy allowed for it. Instead they just stack up in boxes in the basement or off site storage.
The city’s response is problematic for a number of reasons. It gives the litigation exemption a much broader reading than case law allows. It also fails to identify the specific exemptions relied on as to each request. If there is a statutory basis for delay, it doesn’t provide the specific information required to invoke the delay. It doesn’t look like the requesterfiled an enforcement action.
There is no indication documents were illegally destroyed. The timelines in the story suggest they are maintaining them for the minimum time required by California law. There is no actionable duty to maintain them for a longer time except as to those specific files meeting litigation hold or destruction of evidence criteria.
Certainly it came as a surprise to me, as I think the legal issue is pretty simple and this one ruling erroneous. A significant number of agencies are already complying with 1421, but this new order is empowering organizations that object.
The lawsuits are generally being pursued by associations representing officers, not law enforcement agencies. Also one state trial court has ordered that documents generated before January 1, 2019 not be disclosed pending resolution of the litigation.
While some agencies are recalcitrant, others are not. Anyone who isn’t already doing the relatively little that would be required by the meet and confer language before filing suit is wasting an opportunity to get the desired records without filing suit and faster.
Suspicion and the availability of attorneys fees can both drive unnecessary litigation. Many people are reluctant to pick up a phone to try to resolve a dispute. That is one of the big changes in legal practice over the last 35 years. In my experience written communications seem more likely to harden people’s positions, while conversations are more likely to result in resolution.
Given existing California law, a reasonable attempt to meet and confer would be what is required. In other settings, I typically send a letter laying out my issues or send a draft of the complaint or motion, proposing a time to talk on the phone and asking the opposing party to let me know if another time would be convenient. I call at the proposed time, leaving a message if necessary. I call again 1 or 2 days later and again leave a message if necessary. Then I file if I don’t hear from them. I have never had a judge even suggest that effort might be deficient.
It could have some impact on those attorneys whose business model is to submit requests and quickly file suit for the fees. It is not as big an issue here as in some areas, but it does happen. It can also give you something to show people representing themselves to get past their suspicion that you are calling to put something over on them and actually have a conversation about the issues raised.
Under California law a requester can file suit at any time. The public agency is already required to initiate contact and confer with the requester in many cases. Frankly, I think the meet and confer requirement is unlikely to have much impact. I just said it isn’t particularly onerous. People should be more concerned with the proposed additions as to the findings required to prevail in the legal action.