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Public Records Act: government officials should not destroy public records

Playing Hide and Seek With Public Records

It’s not unusual for newspapers, or lawyers in Public Records Act or Freedom of Information Act cases, to accuse the government of trying to “hide” things. Now a San Bernardino County case has revealed what may be a criminal attempt at hiding public records, just in time for a Fourth of July reminder about the importance of access to information about government.

San Bernardino County officials June 30 arrested Adam Aleman, a 25-year-old assistant assessor in that county. Aleman was charged with six felony counts – among them a count for destruction of public records. That count alleges that he destroyed the hard drive of a laptop computer that had been issued by the county to Assessor Bill Postmus during Postmus’ tenure on the Board of Supervisors.

The link to Postmus is significant. He was the central figure in a Public Records Act lawsuit brought by the California First Amendment Coalition and the San Bernardino Sun claiming that Postmus should have disclosed calendars and e-mails relating to a two-week period in the summer of 2006 when fires raged in San Bernardino County and Postmus, then the chairman of the Board of Supervisors, was mysteriously absent.

A San Bernardino County judge ordered a few calendar entries and e-mails released but upheld the county’s decision to withhold many calendar entries based upon the county’s claim of “deliberative process.” But during the case, the judge ordered the county to prepare a “privilege log,” an inventory of withheld records and the county’s reasons for withholding them. The log revealed a gap in the summer of 2006 during which Postmus seemed to have been cut off from e-mail. His spokesmen offered conflicting accounts about where Postmus was and whether he had email access.

The DA’s office has not linked Aleman’s indictment to the mysterious events surrounding Postmus (and Postmus himself has not been charged with any crime). However, the hard drive may have been destroyed in June or July of 2006 – the same summer Postmus was absent during the raging fires in his home county.

Was the hard drive destroyed in response to CFAC’s and the Sun’s record request? Or in response to inquiries from Sun reporters that preceded the record request? Hopefully, the criminal proceedings against Aleman will provide answers to these questions.

Prosecutions of public employees or officials for destruction of public records are highly unusual, although the legal authority for doing so seems quite clear. Government Code section 6200 makes it a crime (punishable by up to four years imprisonment) to “willfully . . . destroy . . . alter or falsify” any “record . . . filed or deposited in any public office.”

The other counts against Aleman allege that he falsified and backdated documents for submission to a county civil grand jury that has been conducting an investigation of the Assessor’s Office. The grand jury’s report, issued Monday just hours after Aleman’s arrest, is highly critical of Postmus’ management of the office and alleged use of employees and resources for political purposes. During its investigation, the grand jury apparently reported to the district attorney on its suspicions about evidence given to the grand jury by Aleman. In April, investigators served a search warrant on the assessor’s office and seized computers and files.

Public records, as the California Supreme Court explained last year, can expose “corruption, incompetence, inefficiency, prejudice and favoritism.” The alleged destruction of a laptop computer here can only lead people to wonder what the records on the laptop would have revealed.