The California Supreme Court held earlier this month in City of Gilroy v. Superior Court that the California Public Records Act does not impose a requirement on public agencies to retain records for three years after asserting an exemption to disclosure of the records. The court notes that this is a fairly straightforward conclusion from the text of the CPRA itself, which does not make any reference to a requirement to preserve records.
However, the court also notes that preservation requirements may exist on the basis of pending litigation, so the absence of explicit language in the CPRA itself is not necessarily the end of the analysis in terms of whether records can or can not be run through the digital shredder.
The unfortunate thing about decisions like this is that, whatever they mean as a purely legal matter, they also symbolically gesture in a particular direction, and the direction in this case is toward the idea that public agencies should go ahead and destroy records, or at least should not feel bound to preserve them under the CPRA. Alternatively, I suppose you could also view the decision as a flag to the California legislature that some amendments to the CPRA may be necessary. Either way the symbolism is not of the court itself standing up for public access to records, but there is only so much the court can do given the lack of any language on preservation in the actual statute.
At any rate, the takeaway from City of Gilroy, as a practical matter and for members of the public, is absolutely to get preservation letters submitted to agencies immediately whenever there is a prospect that evidence could be destroyed by the passage of time. The CPRA itself may not ensure that records are preserved, but agencies can nevertheless be put on notice that the records are the subject of potential litigation and thus need to be retained.
Related Post: California Public Records Act Statute Numbering Cross-Reference Update.
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