HomeMy WebLinkAbout09. Consider adopting new Board Policy No. BP 033 — Conducting District Business Using Personal Accounts and DevicesPage 1 of 6
Item 9.
' CENTRAL SAN BOARD OF DIRECTORS
POSITION PAPER
MEETING DATE: JANUARY4, 2018
SUBJECT: CONSIDER ADOPTING NEW BOARD POLI CYNO. BP 033— CONDUCTING
DISTRICT BUSINESS USING PERSONAL A CCOUNTS AND DEVICES.
APPROVAL RECOMMENDED BYADMINISTRATION COMMITTEE.
SUBMITTED BY: INITIATING DEPARTMENT:
KENTON L.ALM, DISTRICTCOUNSEL SECRETARY OF THE DISTRICT
Roger S. Bailey Kenton L. Alm
General Manager District Counsel
ISSUE
The California Supreme Court ruled last Spring in City of San Jose v. Superior Court 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 California Public Records Act ("PRA"). This proposed new Board
policy and the suggested approach to production of public records potentially contained on private mobile
devices is in part a response to that ruling.
BACKGROUND
The Administration Committee reviewed drafts of a new Board Policy, No. BP 033 — Conducting District
Business Using Personal Accounts and Devices, at meetings held September 12, October 24, and
December 12, 2017. The attached proposed policy incorporates the Committee's input and clarifies 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.
January 4, 2018 Regular Board Meeting Agenda Packet - Page 194 of 235
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Board policies are designed to be broad, clear policy statements, leaving more detailed implementation
strategies and designations of staff responsibilities to staff administrative procedures. This Policy as
intended is relatively simple, but several of the related issues and the implications of the City of San Jose
Supreme Court ruling are not simple. As the minutes from the several Administrative Committee meetings
where these issues were discussed reflect, the discussions held with the Committee were quite detailed
and dealt with a number of topics, including the following:
1. Alternative approaches for public agencies to address the use of personal devices and accounts for public
agency business;
2. Shortened retention periods for emails, texts and voicemails on personal accounts and devices as well as
for emails on District accounts;
3. District -wide efficiency as related to use of new technologies, including use of emails, texts and voicemails
on personal accounts or devices; and
4. Maintaining full transparency in the conduct of the District's business.
A brief summary of the implications of the City of San Jose Supreme Court ruling and several of the
Administrative Committee discussions will be provided by District Counsel at the Board meeting.
The Committee also reviewed proposed diligent search of mobile devices language to be included in
detailed PRA administrative procedures (AP 033) that will directly apply to Board Members as well as
employees. Attached are the draft associated administrative procedures addressing potential diligent
searches of personal mobile devices of Board Members and employees.
ALTERNATIVES/CONSIDERATIONS
The Board could choose to not adopt a policy governing use of personal accounts and devices, but this is
not recommended in light of the recent court ruling.
FINANCIAL IMPACTS
None.
COMMITTEE RECOMMENDATION
The Administration Committee reviewed this matter at its meetings held September 12, October 24 and
December 12, 2017. The Committee recommends Board approval.
RECOMMENDED BOARD ACTION
Adopt new Board Policy No. BP 033 — Conducting District Business Using Personal Accounts and
Devices.
ATTACHMENTS:
1. Draft 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
January 4, 2018 Regular Board Meeting Agenda Packet - Page 195 of 235
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Central Contra Costa
Number: BP 033 Sanitary District
Authority: Board of Directors
Effective: January 4, 2018
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
January 4, 2018 Regular Board Meeting Agenda Packet - Page 196 of 235
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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 encouraged to avoid conducting District business
using personal mobile devices or on non -District accounts. Since 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 protection of employees' and
officials' privacy. However, the District recognizes that some District employees and
officials do not always carry a District mobile device and for effectively carrying out their
District functions may occasionally need to use their personally owned mobile device on
a non -District account. In that event, District employees and officials should endeavor
to: 1) avoid use of texts for District business, and 2) use 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 promptly 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, typically including
customers, vendors, consultants, contractors, developers, and other members of the
public. Nothing in this Policy is intended to restrict 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 obligation of public
agencies to make Public Records available upon request under the California Public
Records Act.
[Original retained by the Secretary of the District]
January 4, 2018 Regular Board Meeting Agenda Packet - Page 197 of 235
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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:
January 4, 2018 Regular Board Meeting Agenda Packet - Page 198 of 235
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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.
January 4, 2018 Regular Board Meeting Agenda Packet - Page 199 of 235