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HomeMy WebLinkAbout03.b. Follow-up discussion on proposed new BP 033 - Conducting District Business Using Personal Accounts and DevicesPage 1 of 6 Item 3.b. S Central Contra Costa Sanitary District December 12, 2017 TO: ADMINISTRATION COMMITTEE FROM: KENTON L.ALM, DISTRICT COUNSEL REVIEWED BY: DONNA M. ANDERSON, PROVISIONAL SECRETARYOF THE DISTRICT ROGER S. BAILEY GENERAL MANAGER SUBJECT: FOLLOW-UP DISCUSSION FROM SEPTEMBER 12 AND OCTOBER 24, 2017 MEETINGS ON PROPOSED NEW BOARD POLICY NO. BP 033 - CONDUCTING DISTRICT BUSINESS USING PERSONAL ACCOUNTS AND DEVICES At the September 12, 2017 Administration Committee meeting, the Committee reviewed a draft policy relating to the production of public records and the proposed diligent search of mobile devices language to be included in the detailed California Public Records Act ("PRA") draft administrative 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 last Spring in the 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 P RA. The Committee suggested several changes to the draft policy which were brought back to the Committee for review on October 24, 2017. Based on that discussion, it was concluded that the changes to page 1 of the draft policy (to incorporate a definition of "public records" and expand the description of the types of personal accounts or devices affected by the policy, similar to that in the "Diligent Search" section of the draft Administrative Procedure No. AP 033) were acceptable. However, the Committee wished to modify the new paragraph on page 2 to clarify that messages received or sent via text message or similar medium may well be Public Records and subject to being made public. Accordingly, appropriate discretion should be utilized to minimize use of private devices and non -District email accounts for the conduct of District business. Chair McGill also said he would add that keeping appropriate records of District business is always good practice, whether they be notes of phone calls, or meeting minutes. Attached is Draft No. 3 of BP 033 (in strikeout) for the Committee's review. The first page is unchanged since the October 24, 2017 meeting. The wording on page 2 has been modified to take into consideration the Committee's suggestions. Also attached is the same portion of the draft associated administrative procedures (AP 033) being developed to address potential diligent searches of personal mobile devices of Board Members and employees. The Committee reviewed this portion of the procedures at the September 12 meeting as it directly applies to Board Members as well as employees. No changes were suggested by the Committee December 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 13 of 72 Page 2 of 6 Members. I will be unable to attend the December 12 Committee meeting due to a scheduling conflict, but I believe this latest draft captures the Committee's feedback. Certainly this policy could be drafted in a different fashion if desired, but I am comfortable with the content of this draft policy as presented. It would be my suggestion that if further changes are recommended by the Committee they be presented as part of the draft that is presented to the full Board for consideration. ATTACHMENTS: 1. Draft No. 3 BP 033 - Conducting District Business Using Personal Accounts and Devices 2. Excerpt re "Diligent Searches" from draft Administrative Procedure No. AP 033 - Responding to Public Records Act Requests December 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 14 of 72 Number: BP 033 Page 3 of 6 Central Contra Costa Sanitary District Authority: Board of Directors DRAFT No. 3 Effective: , 2017 12-12-17 Revised: Reviewed: Initiating Dept./Div.: Secretary of the District's Office BOARD POLICY 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 retained by a District employee or Board Member in their personal email or social media accounts, and/or on personal devices 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 December 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 15 of 72 Page 4 of 6 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 stFer gly idisGo irage d fr„mencouraged to avoid conducting a44y-District business using personal mobile devices or on non -District accounts. T14i-sSince keeping appropriate records of all District business is always good practice, this is the best way to ensure both that the District has access to Public Records and to proteGtprotection of employees' and officials' privacy. However, the District recognizes that some District employees and officials do not always carry a District mobile device but rather use e"l"and for effectively carrying out their District functions may occasionally need to use their personally owned mobile deviGes.device on a non -District account. In that event, District employees and officials should endeavor to: 1) n-etavoid use of texts for District business,, and, 2) use -04* a District email account for District business. If a communication related to District business is received or generated on a personal device or non -District account, it should be forwarded or copied as seen as pessiblepromptly 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, seeb-a-stypically including customers, vendors, consultants, contractors, developers, and other members of the public req UiriRg Dic+riGt seryiGes.. Nothing in this Policy is intended to restrict er modify the free exchange of information between District employees, officials and the public in the ordinary course of conducting District business. This Policy is merely intended to address the additiORal requiremen+obligation of public agencies to make p blip writing Public Records available upon request under the California Public Records Act. [Original retained by the Secretary of the District] 2867891.1 December 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 16 of 72 Page 5 of 6 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 by 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: December 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 17 of 72 Page 6 of 6 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. December 12, 2017 Regular ADMIN Committee Meeting Agenda Packet - Page 18 of 72