Posted Wednesday April 6, 2011 9:03pm
City of Austin’s Records Retention Undermined
by Lack of Controls Over Deletion of E-mails
Missing Records Likely More
Important Than Gossipy Tidbits
Investigative Report by Ken Martin
© The Austin Bulldog 2011
The Austin American-Statesman and some television reports had a field day serving up e-mail exchanges among the mayor and council members that reveal the proclivity of some officeholders to hold side discussions among themselves during council meetings in which they demeaned certain citizens and showed a lack of confidence in high-level employees, including the city manager, an assistant city manager and the fire chief.
This rush to dish the dirt out of the e-mails that have been released—in response to open records requests filed under the Texas Public Information Act, first by The Austin Bulldog and later the Statesman and other media—has been entertaining, in a sense, and has triggered profuse apologies from the offending officeholders. A heaping helping of humble pie has been served up and choked down.
What has not been reported is how these elected officials, and their staff members, may be failing to properly manage e-mails and other correspondence to make sure that local government records are collected, assembled, and maintained in accordance with the Local Government Records Act.
At present, the city permits every city official and employee to conduct public business by creating or receiving local government records via e-mail and to keep them secret by using personal e-mail accounts.
The city also permits every official and employee who uses a computer to choose—without review by anyone else—when to delete local government records in the form of e-mails created or received on the city’s computers. Once e-mails are deleted, the right of access to them through the Texas Public Information Act, Government Code Chapter 552, is soon permanently lost.
The city’s failure to comply with the Texas Public information Act and the Local Government Records Act was the basis for the lawsuit, The Austin Bulldog v. Mayor Lee Leffingwell, et al, as reported March 2. The city has until April 11 to file its initial reply to the pleadings.These shortcomings are also the basis for The Austin Bulldog's complaint filed with County Attorney David Escamilla,as reported March 23.
The city’s response to The Austin Bulldog’s open records requests for deleted e-mails indicate that some e-mails that should have been retained are being deleted.
Records retention basics
City Clerk Shirley Gentry is responsible for providing instructions to all city departments concerning how to maintain local government records in accordance with Chapter 2-11 of the Austin City Code.
In a March 31 interview, Gentry said the control of local government records is based upon their content. Although no city resources should be used for personal business, “in reality we know that employees get personal e-mails on city computers,” she said. Personal e-mails should be removed as soon as possible, she added.
City officials receive hundreds of e-mails that are mass-distributed to large groups of people and they are not required to keep these records.
If an e-mail concerns official city business, however, the next step in deciding on whether the record needs to be retained is whether the employee or official is the custodian of that record, Gentry said. “If you wrote it, you’re the custodian,” she said, adding that e-mails are to be treated the same as paper records. It is the content of a record—not the form it takes—that determines how long a record must be maintained.
“You decide based on the approved retention schedule how long you should retain the record,” Gentry said. “The policies are in place and each individual has to decide.”
The City of Austin’s Local Government Records Control Schedule is approved by the Texas State Library and Archives Commission, in accordance with Section 203.041 of the Local Government Code. The portion of the schedule pertaining to the mayor and council members is as follows:
Five years: Policy and program development—Correspondence and internal memoranda pertaining to the formulation, planning, implementation, modification, or definition of the policies, programs, services or projects of the city must be kept until the end of the mayor and council members’ final term of office plus five years.
Two years: Administrative—Correspondence and internal memoranda pertaining to or arising from the routine administration or operation of the policies, programs, services, and projects of a local government, including requests for support, must be kept until the end of the mayor and council members’ final term of office plus two years.
Gentry said once a record is identified for retention it should be moved into folders that are organized in the manner determined by the custodian. “Once it’s in the folder you leave it until it’s time to destroy it,” she said.
Given the requirements of the state-approved Records Control Schedule, that means a record qualifying for retention by council members must be kept for the rest of their time in office, and the city records custodian must keep those records for years afterwards.
Destruction of records
Records that are destroyed are supposed to be entered into a destruction log, Gentry said. This requirement is spelled out in Section 2-11-10(C) of the Austin City Code. Information to be logged for records that have been destroyed includes the inclusive dates of the records; the quantity of records destroyed; the date the records were destroyed; the name of the person who authorized the destruction; and the method of destruction.
The Austin Bulldog submitted an open records request for copies of the destruction logs of the mayor and council members February 26. In response, Assistant City Attorney Cary Grace said in a March 21 e-mail (addressed to attorney Bill Aleshire of Riggs Aleshire & Ray PC, who represents The Austin Bulldog in this matter) “no destruction logs exist that are responsive to” this request.
The claim that no destruction logs exist is open to at least two possible explanations:
Proper compliance—No records have been destroyed that should have been retained.
Destroyed records not logged—Council offices may be failing to keep all records required by the Records Control Schedule and may be failing to keep the destruction logs that provide proof of destruction. Failure to carry out these responsibilities is a criminal offense.
Section 202.008 of the Local Government Records Act states, “An officer or employee of a local government commits an offense if the officer or employee knowingly or intentionally violates this subtitle or rules adopted under it by destroying or alienating a local government record in contravention of this subtitle. ... An offense under this subsection is a Class A misdemeanor.”
“An individual adjudged guilty of a Class A misdemeanor shall be punished by a fine not to exceed $4,000; confinement in jail for a term not to exceed one year; or both such fine and confinement,” according to Section 12.21 of the Penal Code.
Deleted e-mails obtained
The Austin Bulldog filed an open records request on February 26 to obtain copies of all e-mails from the mayor and council members that were deleted since January 18, 2011, regardless of the date of the original e-mail, and a copy of the “destruction log” of the mayor and council members.
Attorney James E. “Jim” Cousar of Thompson & Knight LLP is one of the attorneys hired by the City of Austin to provide advice regarding the city council’s violations of the Texas Open Meetings Act reported by The Austin Bulldog January 25. Because The Austin Bulldog has sued the mayor, council members and the city, Cousar—rather than city staff—also has been reviewing The Austin Bulldog’s open records requests and in some cases crafting responses to them.
In a March 21 letter, Cousar responded to The Austin Bulldog’s February 26 request. As a result, 601 pages of e-mails deleted by the council members or their staff since March 2 were retrieved before they were destroyed. These e-mails are accessible in batches, as follows:
• Deleted e-mails pages 1 through 150
• Deleted e-mails pages 151 through 300
• Deleted e-mails pages 301 through 450
• Deleted e-mails pages 451 through 601
“...the e-mails the City is providing today are not actually ‘deleted’ since they exist on the city server in each individual’s personal mailbox,” Cousar wrote. “The e-mails being released were either stored in a folder titled ‘deleted’ (a folder that remains in the individual’s personal mailbox) or they were in the ‘dumpster’ box for that individual. We are providing e-mails subject to the PIA (Texas Public Information Act) that reside in those folders and dumpsters.”
Cousar’s letter, citing guidance from the Texas Attorney General’s office, states, “if an e-mail is still on a hard drive because it is in the ‘in’ box, in the ‘deleted items’ folder, or in the recycle bin, it is subject to the TPIA. Otherwise it is not.”
While these records may not have been actually destroyed when obtained by The Austin Bulldog, they were in fact marked for disposal and could be quickly flushed out of the system, and some of those deleted e-mails appear to have warranted retention in accordance with the Local Government Records Control Schedule. Here are a dozen examples:
Administrative—Requires retention through final term of office plus two years:
• Mayor Pro Tem Mike Martinez’ e-mail of September 27, 2010 to Mayor Lee Leffingwell and Council Member Randi Shade, “FW: Submitted from city council website - Redevelopment Planning Airport Between Lamar/I-35,” about the possibility that the McCann Adams Studio was inappropriately lobbying for a contract.
• Mayor Pro Tem Martinez’ e-mail of September 29, 2010, to the mayor and council members, “ Re: Proprietary and confidential,” about fees paid for the Austin City Limits Music Festival.
• Council Member Randi Shade’s e-mail of January 20, 2011, to the mayor and all council members, “Time for City Auditor Annual Review.”
Policy and program development—Requires retention through final term of office plus five years:
• Council Member Shade’s e-mail of February 17, 2010, to Margo Weisz and Mayor Pro Tem Martinez, “Re: Austin Schools,” in which Weisz suggests a “small title transfer fee (perhaps .1 %)” for funds to go into a School Foundation.
• Council Member Chris Riley’s e-mail of December 23, 2010, to Andrew Clements, “Re: Concerns about Travis County plans for a new County Courthouse at Republic Square.”
• Council Member Shade’s e-mail of January 7, 2011, “Re: Mayor/Council memo from Solid Waste Services re: Plastic bag cost findings.”
• Mayor Pro Tem Martinez’ e-mail of January 13, 2011, to Jude Galligan, “RE: DANA’s position letter on OMV’s” (Downtown Austin Neighborhood Association, Outdoor Music Venues).
• Council Member Shade’s e-mail of January 18, 2011, to Austin Kessler, “RE: December 16th City Council Meeting - response requested,” about why she voted for Water Treatment Plant 4.
• Council Member Riley’s e-mail of January 26, 2011, to Mayor Pro Tem Martinez, “FW: Saltillo Plaza HUD Job Creation application.”
• Council Member Riley’s e-mail of January 27, 2011, to Frank Fernandez, “”RE: BEDI call to Council,” about a Brownfield Economic Development Initiative (BEDI).
• Mayor Pro Tem Martinez’ e-mail of January 28, 2011, to Sarah Andred and Andrew Moore, “RE: The Allandale at Northcross,” and Low Income Housing Tax Credits.
• Mayor Pro Tem Martinez’ e-mail of February 22, 2011, “FW: Request for Written Response,” about the Barton Springs Bypass Tunnel Report.
Record management training
City Clerk Shirley Gentry said all city employees are required to take 16 hours of training each year. The classes are listed on a website maintained by the Human Resources Department, she said, available on the city’s intranet (not publicly accessible). Employees can sign up, take a training course, and get credit for it.
Some departments mandate what training its employees must take while other departments leave it to the employee’s discretion, she said.
“Fifteen training modules in records management are offered numerous times a year,” Gentry said, and are conducted by records analysts who work in the City Clerk’s office. A 10-step program covers topics such as creating a records management team, inventorying records, how to prepare a disaster recovery plan and reestablish business after a disaster happens, and how to read and understand a records retention schedule.
Gentry said that records of who has taken training in records management is public information.
The Austin Bulldog submitted open records requests on March 31 for records that would show the history of training courses pertaining to records management and retention that have been completed by the mayor and council members and their staff members, and for copies of records management training materials used to train these officials and the city manager and assistant city managers.
That open records request was diverted from the usual source of such information, the Human Resources Department, and routed to attorney Jim Cousar, as it may relate to The Austin Bulldog’s lawsuit against the mayor, city council members and city of Austin.
The Austin Bulldog’s attempt to get a follow-up interview with Gentry to clarify some points about records management resulted in instructions from the Public Information Office to route questions through Cousar for the same reason, and The Austin Bulldog declined to take that route.
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