Records Disclosure and Retention When Working Remotely
How COVID-19 Stay Home Orders Impact Government Records
As more and more local public agencies send employees home to work, working remotely has raised some unique records disclosure and retention issues.
Records that concern the conduct of the public’s business are public records subject to disclosure under the California Public Records Act, even if the records are retained on an employee’s private device or account. If an employee is using a private laptop with remote access, such as a virtual private network, known as VPN, then the laptop most likely does not need to be searched in response to a CPRA request. However, if a record is exclusively kept on a personal laptop, then a search as contemplated in City of San Jose v. Superior Court may be appropriate.
It is important for public agencies to continue to respond to CPRA requests, even during the COVID-19 crisis. The CPRA provides a strict statutory timeline as to when an agency must determine whether it has responsive records, but a timeline for producing these records is not as strict and will be held to a standard of reasonableness. The agency should endeavor to produce records in light of its resources during the crisis.
Records in the agency’s actual or constructive possession may be subject to disclosure under the CPRA. Admittedly, only retained records are subject to disclosure; but agencies should be careful to retain the appropriate universe of records, even when working from home.
Generally, the content of the record will dictate the applicable records retention period. Zoom meetings and telephone conversations typically do not need to be recorded. However, if recorded, then it could be subject to retention and, potentially, disclosure under the CPRA. Chat tools such as Microsoft Teams, Slack and Zoom are records in existence that are potentially subject to retention and disclosure.
Those records that are retained are also subject to litigation discovery under certain circumstances. Unlike the CPRA, where the requester must submit a request to the local agency to gain access to records, a party to litigation could directly subpoena records from an employee.
It is recommended that government agencies have policies that address these issues. Policies place employees on notice about the agency’s expectations and ensure that the agency’s rules comply with the law.
To have a policy drafted for your local agency or to ask about CPRA or retention issues during this COVID-19 crisis, please contact the author of this Legal Alert in BB&K’s ARC: Advanced Records Center or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.