California cities are starting to feel the impact of legislation that put the state’s electronic discovery regulations in step with federal rules and clarified the scope of what electronic data is considered a public record.
In 2009, Gov. Arnold Schwarzenegger signed California’s Electronic Discovery Act (Assembly Bill 5), into law, establishing procedures to govern the discovery of electronically stored information in California state courts.
Now, IT officials working in California cities are saying that they are overwhelmed by the complexity of the public archived information being sought.
It’s not just e-mails or final versions of public documents that now are being requested by the public, said Dennis Vlasich, IT director of Fontana, which is about 50 miles east of Los Angeles. Unsigned draft versions of contracts, peripheral documents and even voicemails are being requested, which is creating a heavy burden on IT professionals — particularly those working in cities without the resources to purchase the needed e-discovery tools.
Although responding to record requests has traditionally been a function of a city clerk’s office, in recent years IT departments have become heavily involved in the process as federal and state laws have included electronic documents under the public records umbrella.
“Now we get a call in IT and … we have to go see if there are residual copies of the document that need to be provided if the person requesting the document says, ‘I want all the documents that led up to this contract in their original electronic form,’” Vlasich said. “That could involve a rather difficult and arduous search.”
Phillip Leclair, acting chief information officer of Pasadena, said that while he believes AB 5 isn’t the sole cause of more detailed public record requests, the legislation clearly has placed more pressure on IT staffs to deliver the data.
“The cost of not producing the data is more expensive if a court case [if the city is sued by someone requesting a particular record and is denied the information] ends up not being advantageous to the city,” Leclair said. “There’s more effort on us, even if it costs money [to invest in e-discovery tools] to produce the documentation upfront then to say that it’s not available.”
Many city IT staffs are turning to e-discovery software to help manage and produce the expanding pool of public information, including e-mails, contracts and other forms of digital documentation.
For example, Los Angeles is utilizing Google Apps for Government, which city officials said has dramatically reduced staff time previously spent combing through archived e-mails to fulfill requests. The same holds true for Pasadena, which uses a solution from CommVault that employs keyword searching to locate data.
“It adds to our cost of business, but it has turned out to be cheaper in the long run to use these software tools, than to do it [manually], which would have cost us a lot more staff time in order to produce particular records,” said Leclair.
Kevin Crawford, assistant general manager of Los Angeles’ Information Technology Agency, decided to test the efficiency of Apps for Government. He had his staff manually compile documents for a fairly large public records request. The search took 100 staff hours, whereas the city’s e-discovery tool took approximately 10 minutes to complete the same task, he said.
Leclair’s experience was similar. His staff would spend hours going through information based off keywords and conversations in order to find e-mails. But using e-discovery tools has really helped streamline the process.
“It makes it much easier to pull information together and manage it from a legal or public records request perspective,” Leclair added.
With or without e-discovery tools, Vlasich, Crawford and Leclair all agreed that sticking to clearly defined document retention policies can go a long way in reducing the discovery burden. If documents are not required to be kept past a specific date, destroying that paperwork — electronic and otherwise — can save cities time and money on public records requests.
Los Angeles currently has a seven-year retention policy on e-mail and documentation. But Crawford said the city soon will likely shorten the policy to three years. Fontana has a two-year retention policy on e-mails related to city business. But Vlasich said there is no standard — some cities have a 30-day destruction policy.
“It really puts pressure on all city staff to manage documents and adhere to retention policies even more closely,” Leclair said. “Official records [used to] come from department heads and managers, but because there is so much more view into daily operations as a result of AB 5, we’re pushing a lot of those requirements to manage documents and retention to lower staff.”
Vlasich was adamant that in addition to retention policies, cities need to formulate a system to better file electronic documents. Unlike paper records, which generally have a detailed filing system, most cities don’t have standardized systems for filing electronic files, which adds to the mountain of documents that need to be sifted through for public records requests.
“What we haven’t done in the public sector is apply that same file plan taxonomy to the e-naming and filing of electronic documents and e-mails,” Vlasich explained. “Most cities I’ve talked to … [are] pretty sloppy with a big pile of electronic documents that seems to grow every month, and we never seem to address that one particular issue.”
Vlasich would like to see a complete overhaul of how people save documentation. Instead of creating individual folder hierarchies and file names, populating the metadata of files with meaningful index values would be a big step in reducing the amount of time spent looking for documents, he said.
“I’m just not seeing any easy way to facilitate the e-discovery process without changing user behavior,” Vlasich said. “There has to be good metadata because doing a full on context search is still very time consuming.”
Brian Heaton was a writer for Government Technology magazine from 2011 to mid-2015.