By Jeff McDonald, SAN DIEGO UNION-TRIBUNE

January 30, 2022

https://www.sandiegouniontribune.com/news/watchdog/story/2022-01-30/fac…

Last year, while California Insurance Commissioner Ricardo Lara promoted his commitment to government transparency and defended a lawsuit accusing him of withholding public records, the agency he oversees adopted a plan to automatically delete most of its emails after 180 days.

The department’s updated “records retention policy” went into effect on Jan. 1, even though employees complained that they often rely on such communications for quick references, contact data and to document what insurers and brokers had previously represented or promised.

Department of Insurance officials told employees in a seven-page memo that, under the new retention policy, emails would be permanently erased unless staff members took specific actions to preserve each one. 

“This will be a constant ‘rolling’ 180-day deletion, not a batch process, based on the date/time stamp the message is received,” states the internal memo, a copy of which was obtained by The San Diego Union-Tribune.

It also noted that certain legal and other exchanges would be retained for 15 years or more. 

Insurance department spokesman Michael Soller initially defended the auto-delete plan for nearly a week, saying the department is legally obliged to maintain a records-management program that complies with the California Public Records Act.

“Agencies are required to have written guidelines,” he wrote in a Jan. 21 email. “There is a separate law that requires a document retention policy for all state agencies.”

But after additional questioning, Soller said the email-deletion plan had been reversed. 

“Today, the committee representing all branches of the department on IT matters voted to withdraw the policy,” he wrote in a follow-up email Thursday to the Union-Tribune. “I’m letting you know so you can report it accurately.”

He declined to explain why the committee decided to reconsider the plan four weeks after it went into effect.

“The committee voted to withdraw this proposal entirely as it is not workable in implementation,” he said. “Therefore, the proposal will not be implemented.”

The Department of Insurance for years has preserved routine emails for two years and specialized documents for 30 years. Generally, public agencies in California store routine emails for at least two years.

Open-government advocates said the idea of automatically destroying emails is antithetical to public service, and that public employees should be automatically preserving public records, including emails. 

“Public employees should have to take affirmative steps to delete emails — not to preserve them,” said David Snyder, an attorney and executive director of the nonprofit First Amendment Coalition in San Rafael, north of San Francisco. “When you have a computer deciding to automatically delete things, potentially vast troves of public information disappears.” 

Snyder said the Department of Insurance did the right thing by reversing course. He said his organization said recommends public agencies store emails for two years as a best practice.

“These kinds of policies are a much too blunt approach to record-management,” Snyder said. “It’s really important that the public speak out when these policies come up. These are the public’s records.”

The plan to systematically delete insurance emails was approved last year, after the Department of Insurance was sued over its handling of a California Public Records Act request submitted by Consumer Watchdog.

The Los Angeles-based advocacy group had requested communications to and from Lara and other senior officials, specifically records of meetings, emails and other exchanges between department officials and lobbyists representing key donors.

According to Consumer Watchdog’s 2020 lawsuit, the Department of Insurance failed to release — or even search for — communications with executives at Applied Underwriters, an insurance company that needed Lara’s approval to transfer ownership of its California subsidiary.

Lawyers representing the Department of Insurance argued in court that they fully complied with the document requests filed by Consumer Watchdog. The dispute is set for trial later this year.

Consumer Watchdog made its document request nearly two years ago, after the Union-Tribune reported that Lara had accepted political contributions from business owners and others with interests before the Department of Insurance, including Applied.

In the wake of the report, Lara issued a public apology for violating his campaign pledge to avoid donations from insurance companies. He also returned more than $80,000 to donors and suspended campaign fundraising for more than a year.

After learning about the department’s email deletion plan, Consumer Watchdog sent Lara a letter challenging its legality. 

Last week the group’s Litigation Director Jerry Flanagan said officials were right to change course.

“It’s good that the department is pulling back this ridiculous policy after we threatened to go to court to stop it, but the question is, what will the policy be in the future and will Lara comply with the Public Records Act?” Flanagan said.

“We shouldn’t need to threaten to go to court to make sure the concerns of professionals at the department to protect important public records are heard,” he said.

Lara, a Democratic former state Senator from Bell Gardens, is seeking a second four-year term later this year. His main challenger is Marc Levine, a Democratic state Assemblyman from Northern California.

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Jeff McDonald