Nearly two months later, on Thursday, Bass’ office said it had “no responsive records,” without stating whether it was withholding any records or any reasons for not producing the records.
On Friday, responding to questions from The Times, Michaelson said that Bass’ phone auto-deletes text messages and has for at least two years.
Los Angeles Administrative Code Section 12.3(b)(6) dictates that most records “shall be retained for a minimum of two years unless a shorter period is otherwise permitted by law or a longer period is otherwise required by law, or unless, consistent with state law, a different period of retention is established by order or resolution of the Council.”
Michaelson argued that Section 12.3(b)(6) does not apply to texts, relying on a state attorney general opinion from 1981, long before text messages became a commonplace means of communicating.
“As articulated in an Attorney General opinion, a record that must be retained is made for the purpose of providing future reference,” Michaelson wrote in an email. “Texts are ephemeral types of electronic communication, to use Supreme Court words, that afford ‘fleeting thoughts and random bits of information’ that provide an ‘ease and immediacy.’ Texts are not intended to provide future reference for the author or recipient let alone a public official record.”
The Supreme Court decision cited by Michaelson, however, held that San José public officials’ text messages on personal phones were public records that had to be disclosed if they related to government business. The state public records act has no specific provisions for document retention.
First Amendment Coalition Legal Director David Loy disagreed with Michaelson’s interpretation and argued that the texts should be retained.
“Yes, text can be considered ephemeral, just like emails,” Loy said. “But as I read the plain language of L.A.’s own administrative code, the city imposed upon itself a more stringent record retention requirement than state law might otherwise require.”
Kelly Aviles, an attorney and public records expert who has represented
The Times in unrelated litigation, said the explanation offered by Bass’ lawyer is flawed.
A mayor does not get to determine what is or is not a public record based on the device used, Aviles said, adding that such logic would invite officials to delete emails and voicemails they deem “ephemeral.”
Under the state public records act, Aviles said, “it’s the content of the communication, not the method of communication, that is important. If it relates to the conduct of public business, it is a public record that’s disclosed.”
“The idea that they think they can delete whatever they want, whenever they want, is not in compliance with the law at all,” she said.
Aviles also took issue with Michaelson’s citing of the city code.
“The city code doesn’t
trump state law,” Aviles said. “The fact that they have an inaccurate understanding of what state law requires doesn’t help them.”
In response to public records requests, other agencies and public officials have released a multitude of records from the early days of the fire. California law dictates the release of these kind of records, unless there is a specific exemption.
Bass and her office have said she was in constant communication while she was out of the country. But it’s impossible to know exactly what she was communicating, because her messages were not saved, according to a city lawyer.
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