El Monte’s city manager and then-mayor used an application that automatically deleted text messages, potentially in violation of state law, to coach an applicant attempting to secure a retail cannabis license from the city in 2020, according to a newly filed declaration in a pending lawsuit.
City Manager Alma Martinez set the application, called Signal, to delete messages after only an hour, according to a screenshot in the court filing.
State law prohibits public officials from destroying records that are less than two years old and requires them to obtain permission from their respective legislative body — in this case, the City Council — before the destruction, according to Kelly Aviles, an open government attorney.
“I believe the intentional destruction of records relating to the conduct of public business is not only a violation of the law, but may also be criminal,” Aviles said.
However, a district attorney isn’t likely to charge anyone for using Signal anytime soon. A citizen would need to seek an injunction, and then the court, at its discretion, could determine if the act was criminal. The willful destruction of records by a custodian is punishable by up to four years in prison.
Laws related to the retention of records, however, are quite murky. The California Public Records Act, which governs the public’s access, is mum on the length of time any record should be retained. Other state laws prescribe different timelines for different agencies and different types of records.
David Loy, legal director of the First Amendment Coalition, said the use of Signal is “obviously troubling” from a transparency standpoint, but the lack of uniformity in the law can create confusion — sometimes real, sometimes feigned — about what should be retained and for how long.
“I certainly don’t think it’s a good idea, but it’s not 100% clear that it’s illegal,” he said of the use of Signal.
The nonprofit advocacy group Consumer…
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