HomeMy WebLinkAbout03.c. Follow-up discussion from September 12, 2017 meeting on proposed new Board Policy No. BP 033 - Conducting District Business Using Personal Accounts and DevicesPage 1 of 7
Item 3.c.
Central Contra Costa Sanitary District
October 24, 2017
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FROM: KENTALM, DISTRICT COUNSEL
REVIEWED BY: ELAINE R. BOEHME, SECRETARYOF THE DISTRICT
ROGER S. BAILEY, GENERAL MANAGER
SUBJECT: FOLLOW-UP DISCUSSION FROM SEPTEMBER 12, 2017 MEETING ON
PROPOSED NEW BOARD POLICY NO. BP 033 — CONDUCTING DISTRICT
BUSINESS USING PERSONAL ACCOUNTS AND DEVICES
At the September 12, 2017, Administrative Committee meeting, the Committee reviewed a draft policy
relating to production of public records and the proposed diligent search of mobile devices language to be
included in the detailed California Public Records Act ("PRA") Procedures. This policy and the
suggested approach to production of public records potentially contained on private mobile devices is in
part a response to the California Supreme Court ruling in City of San Jose v. Superior Court. To reiterate
the Supreme Court held that public agency officials' or employees' use of personal devices or accounts to
communicate about public business will now be subject to disclosure under the PRA.
The Committee suggested several changes to the draft policy and a detailed discussion followed related
to the retention schedules that should be applied to electronic records of emails and texts retained on both
the District's servers and private mobile devices of Board Members and employees. The revised
attached draft of the Policy contains minor modifications to address the specific comments of the
Committee. In addition, anew paragraph has been added which strongly suggests that it is the policy of
the District to discourage use of private mobile devices for District business other than when using an
account connected to the District's servers. It is anticipated that the Committee will provide input on both
the general policy issue and the drafting of that new paragraph.
I n addition to the policy, there are two other documents provided for the Committee's review. First, is a
copy of the presently proposed wording for the portion of the Administrative Procedures being developed
concerning PRA requests which include potential searches of personal mobile devices. This procedural
language is included here as it will apply to Board Members as well as employees. We have also attached
a copy of a recently circulated CSDA Electronic Document Retention Policy. This policy is attached for
purposes of discussion, especially with regard to whether language similar to that found in Section 2430.2
might be appropriate for inclusion in the District policy and procedures. Your District Counsel will
comment on the potential advantages and disadvantages to including a statement of that variety.
October 24, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 15 of 24
Page 2 of 7
ATTACHMENTS:
1. Draft #2 BP 033 - Conducting District Business Using Personal Accounts and Devices
2. Excerpt from AP 033 - Responding to Public Records Act Requests (Section 5.3. Diligent Search)
3. CSDA Sample Electronic Document Retention Policy
October 24, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 16 of 24
Number: BP 033
Page 3 of 7
Central Contra Costa
Sanitary District
Authority: Board of Directors DRAFT No. 2
Effective: , 2017
Revised:
Reviewed:
Initiating Dept./Div.: Secretary of the District's Office
BOARD POLICY
PUBLIC CONDUCTING DISTRICT BUSINESS USING PERSONAL
ACCOUNTS AND DEVICES
PURPOSE
To establish a policy to maintain compliance with the California Public Records Act.
POLICY
It is the policy of the Board of Directors to ensure that all writings determined to be
Public Records are open to inspection by any person at all times during regular
business hours, or copies are made available upon request, unless the writings are
made expressly exempt from inspection under provisions of law. (Gov. Code § 6253,
subds. (a) & (b).) "Public Records" includes any writing containing information relating to
the conduct of the public's business prepared, owned, used, or retained by the District
regardless of physical form or characteristics. (Gov. Code § 6252, subd. (e).) "Writing"
means any handwriting, typewriting, printing, photostating, photographing,
photocopying, transmitting by electronic mail or facsimile, and every other means of
recording upon any tangible thing any form of communication or representation,
including letters, words, pictures, sounds, or symbols, or combinations thereof, and any
record thereby created, regardless of the manner in which the record has been stored.
(Gov. Code § 6252, subd. (g).)
In addition to all writings physically retained by the District or stored on District
electronic storage systems, certain writings relating to District business Genretained by a
District employee or Board Member in theiretn personal- email or social media accounts,
and/or on personal mobile devices of employees and Board Members such as cell
phones, tablets, laptops and computers, may also be considered Public Records
subject to public review. Such records shall also be made available to the public
consistent with adherence to proper procedures under prevailing law.
All District personnel including Board Members, regular employees, temporary
employees, co-ops, summer students and selected long-term contractors shall be
subject to this Policy and District procedures adopted to implement this Policy. The
Secretary of the District shall be the primarily responsible District officer for insuring
October 24, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 17 of 24
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Board Policy No. 033
Page 2 of 2
compliance with public requests for Public Records and coordinating responses
required by the California Public Records Act.
District employees and officials are strongly discouraged from conducting any District
business using personal mobile devices or accounts. This is the best way to ensure
both that the District has access to Public Records and to protect employees' and
officials' privacy. However, the District recognizes that some District employees and
officials do not carry a District mobile device but rather use only their personally owned
mobile devices. In that event, District employees and officials should endeavor to:
1) not use texts for District business; and, 2) use only a District email account for District
business. If a communication related to District business is received on a personal
device or account, it should be forwarded or copied as soon as possible to a District
email account. District IT staff can assist individuals with this process as needed.
This Policy recognizes that information must routinely be provided by staff to entities
and individuals with whom it conducts the business of the District, such as vendors,
consultants, contractors, developers, and other members of the public requiring District
services. Nothing in this Policy is intended to restrict or modify the free exchange of
information between District employees and the public in the ordinary course of
conducting District business. This Policy is merely intended to address the additional
requirement to make public writings available upon request under the California Public
Records Act.
[Original retained by the Secretary of the District]
2867891.1
October 24, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 18 of 24
Page 5 of 7
Excerpt from AP 033
RESPONDING TO PUBLIC RECORDS ACT REQUESTS
5.3 Diligent Search. The Department Representative or Representatives
shall cause a diligent search for potentially responsive Writings that may
be in the possession or control of their Department.
In addition to Writings generated and stored on District -owned devices,
the search for Public Records should also include a search for potentially
responsive Writings containing substantive information relating to the
conduct of the District's business retained by a District employee or Board
Member in their personal email or social media accounts, and/or on a
personal device, such as one's personal computer or cell phone. The
Department Representative need ask only those employees or officers
who might have Writings responsive to the request (because of that
person's job duties) to engage in a reasonable effort to locate the
requested records on their personal devices. Similarly, in the case of
Board Members or other officials, the Secretary of the District need only
ask those officers that may by their duties and functions have responsive
Writings on their personal devices to undertake a search. The
Department Representative or Secretary of the District should keep a
record of the email he/she sends asking Departments, District
officials and/or employees to search their personal records.
To determine whether a Writing in the employee's or officer's possession
may be subject to disclosure under the PRA, the employee or officer
should look at the following:
a. the subject matter content of the Writing (i.e., is the content
responsive to the PRA?);
b. the context in, or purpose for which, it was written;
C. the audience to whom it was directed; and
d. whether the Writing was prepared while working within the scope of
the employee's or officer's official duties for the District.
District officials and employees are responsible for searching their own
personal accounts and devices for potentially responsive records and
reporting the results of their search to the Department Representative or
Secretary of the District. When the official or employee completes his or
her review of personal accounts and devices, the official or employee
should send a written confirmation to the Secretary of the District or
District Counsel as follows:
October 24, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 19 of 24
Page 6 of 7
1 certify that:
1 do not conduct public business using my personal accounts
or devices and therefore have no records relating to the conduct of
the District's business in any personal accounts or devices
1 have searched my private accounts and devices and have
located no responsive records relating to the conduct of the
District's business;
1 have searched my personal accounts and devices and
have provided all potentially responsive records relating to the
conduct of the District's business located in those accounts or
devices to the Department Representative or Secretary of the
District, and/or
1 have searched my personal accounts and devices and
believe that some, or some parts of, potentially responsive records
are not public records under the CPRA. An additional writing
describing the factual basis for that determination has been, or is
being presented to the District Counsel's Office for a confidential
review.
October 24, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 20 of 24
Page 7 of 7
Communications & Technology Management ADMINISTRATION
KUCYTITLE: Dedredc Document Detention Policy
PaJCY NUMBER 2430
The Bectronic Document Retention Policy of the [District] governs the retention of te)d messages, voicemail
messages, social media posts, and email messages sent or received in the conduct of District business.
2430.1 Definitions
a) Email Message: An electronic communication sent and received via web mail or erriil client.
b) Social Media: InfonYation posted to websites and applications that enable users to create and share
content or to participate in social neWAing, including Faoebook, Twitter, InstagraM Snapchat, and
Linkedln.
c) Tek Message: An electronic, written communication sent and received via telephone or Internet con-
nection.
d) Vdoemail Message: An electronic, aural communication sent or received via telephone or Internet eorr
nection.
2430.2 Tek Messages, Vdoermil Messages, and Social Media
Text messages, voicemail messages, and social media posts riot saved to an archive or a more perniret me-
dium are intended to be ephemeral documents, not preserved in the ordinary course of business. Accordingly,
they do not oorstitute disclosable public records, as that term is defined by Governrrent Code section 6252,
subdivision (e). Directors and District staff are not required to retain these electronic documents. Business done
on behalf of the Distdd that requires the creation and preservation of records should be conducted in other me-
dia.
2430.3 Err -ail Messages
a) Email messages sent or received by the District's computer systems from the date this policy is adopted
will be preserved for two years and made available for public inspection on the same terms as other
District records.
b) Except as provided in pant 3 below, Directors and Distdct staff are required to use (or copy to an ad-
dress on) the Distdct's computer systems for all email massages regarding District business. Such
email messages fall within pant 1 above, i.e., they will be preserved for two years and made available
for public inspection on the same terms as other District records.
c) The District will continue to comply with Government Code § 54957.5 which deems to be a public rec-
ord
ecord any document communicated to a majority of the Directors, whether at the same time or seriatim,
with respect to an item of District business regardless of the means of that communication, including via
run --District email accounts. Directors are encouraged to forward such email messages not received by
the District's computer systems nor copied to its staff or to an en -ail address designated for that purpose
so they can be preserved in the District's email retention system, relieving individual Directors of any du-
ty to preserve such email messages or make them available for public inspection.
d) This policy applies only to the conduct of District business that is subject to the Public Records Act. It
has no application to communications to or from Directors in their other public and private capacities or
communications to or from District staff that are personal, private or otherwise not District business.
The California Special Districts Assnc+alton does not provide legal advice and nothing +n this handbook
should be construed as legal advice. Please contact your legal counsel if you have a legal question
regarding information in this handbook, and to ensure your district is in compliance with applicable laws.
Revised2017.
October 24, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 21 of 24