The Race to Erase: Destruction of Government Documents Undermines Freedom-of-Information Laws

The Race to Erase: Destruction of Government Documents Undermines Freedom-of-Information Laws Frank D. LoMonte* CONTENTS INTRODUCTION ......................................................................................866 I. THE POWER OF PUBLIC RECORDS ......................................................869 II. A SHRED OF DOUBT: THE UNCERTAIN LAW OF RECORDS MAINTENANCE ......................................................................................874 A. The Retention Requirement—and its Limits..................................874 B. Gone in 60 Keystrokes: The Fragility of “Born-Digital” Records ....................................................................880 III. THE CONSEQUENCES OF INADEQUATE CONSEQUENCES .................887 A. No Records, No Recourse: Retention Law’s Missing Right of Action ...................................................................................889 B. No Records, No Problem: Retention Laws Bark, but Rarely Bite ...................................................................................892 C. A Case Study: The Buckeye State’s Pendulum Swing...................897 IV. RACING THE DELETE KEY: INADEQUATE RETENTION LAWS FRUSTRATE PUBLIC OVERSIGHT ...........................................................899 A. The Special Case of Policing ........................................................901 B. Implications of Premature Deletion ..............................................907 C. The City of Gilroy Case: FOI Hits the Retaining Wall ................910 CONCLUSION AND RECOMMENDATIONS ...............................................911 * Legal Counsel, Cable News Network, Inc. Adjunct Instructor, University of Georgia School of Law. J.D., University of Georgia School of Law, 2000. B.A., Georgia State University, 1992. The author expresses warmest appreciation to Stephanie J. Leibert and Brett Posner-Ferdman for their deft research assistance. 865 866 Seattle University Law Review [Vol. 48:865 INTRODUCTION In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government.1 The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents.2 The second was that—during prolonged haggling over the fee assessment—the county attorney’s office simply destroyed almost all of the disputed records.3 Third, and most glaringly, the journalists discovered that Tennessee law did nothing to require agencies to retain public records after receiving a request to produce them, exposing a gaping hole in rightto-know laws that goes well beyond one state. Seemingly in spite of Freedom-of-information (FOI) laws, destroying records to keep them from falling into the hands of an inquisitive press and public is something of a time-honored tactic—as reporters learned in California when, after the state enacted a law granting the public access to records of misconduct complaints against law enforcement officers, police departments responded by running years’ worth of complaint files through the shredder.4 Yet, FOI laws are a venerated part of the democratic process, recognized as essential for the public to have well-informed input into self-governance.5 As one state court pithily summarized it: “Public records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance.”6 These FOI laws are widely credited with bringing to light all manner of wasteful or corrupt government practices, as well as giving the public a window into the operations of government- 1. Sarah Grace Taylor, Hamilton County Attorneys Destroy Public Records After Times Free Press Request, TIMES FREE PRESS (Feb. 1, 2020), https://www.timesfreepress.com/news/2020/feb/01/hamiltcounty-attorneys-destroy-public-records/ [https://perma.cc/4DLG-VWZ7]. 2. Id. 3. Id. 4. Darwin BondGraham, California Cities Have Shredded Decades of Police Misconduct Records, APPEAL (Apr. 17, 2019), https://theappeal.org/california-cities-have-shredded-decades-of-police-misconduct-records/ [https://perma.cc/VRY8-8YB5]. 5. See Barry Sullivan, FOIA and the First Amendment: Representative Democracy and the People’s Elusive “Right to Know”, 72 MD. L. REV. 1, 71 (2012) (“Congress’s purpose in enacting FOIA was to substitute a presumption of transparency for an existing presumption of secrecy. In a very profound way, Congress sought to alter the relationship of the governors to the governed.”). 6. Kish v. City of Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811, at ¶ 16. 2025] The Race to Erase 867 regulated industries.7 Everyone, it seems, loves transparency and accountability. But the effectiveness of these right-to-know laws is greatly limited by the absence of effective requirements to actually retain high-value records—or any meaningful penalty for failing to do so. As one scholar has written: “Efficacy of the requester-release system is predicated on stable, trustworthy archives of government records and good faith efforts in searching these archives.”8 A state appellate court framed the dilemma succinctly: “There is little value in the right to inspect public records if there are no public records for citizens to inspect.”9 When agencies are left to operate on a self-regulating honor system that enables them to destroy documents at will, some predictably will take advantage of the opportunity to cover their tracks.10 When records are purged on a short-turnaround schedule, there can be real information costs to the public. In one 2012 case, the city of Cleveland rejected a public records request from a mother whose son died after being briefly held in the city jail and who sought video recordings to document her claim that police abused her son.11 Because the videos were erased in accordance with the city’s routine disposal schedule—which allowed for destruction of surveillance videos after just thirty days—Ohio courts found no remedy for denial of the mother’s request, which was filed thirteen months after her son’s death.12 In a 2020 case, a Muslim family that alleged their ten-year-old child was improperly strip-searched and quizzed about his religious beliefs lost the opportunity to present school surveillance video footage to support their civil suit because the school 7. See John Dyer, 50 Years of FOIA, NIEMAN REPS. (Jan. 12, 2016), https://niemanreports.org/articles/fifty-years-of-foia/ [https://perma.cc/6VTC-UY8Z] (“FOIA and its analogous state records laws have made possible stories revealing the inner workings of government through politicians’ correspondence, policy memos, internal reports and other texts compiled without the input of press secretaries and other handlers.”) (...truncated)