In response to allegations from numerous residents that the city of Atascadero violated the California Public Records Act (CPRA) by denying the existence of any official city e-mails mentioning Wal-Mart following a July leak of two such e-mails Atascadero Mayor Tom O'Malley pointed out the city's policy of purging all e-mails older than 90 days. That's an illegal policy, according to representatives from both the California First Amendment Coalition and Californians Aware.

• PHOTO BY JESSE ACOSTA
• NOTHING WRONG : Atascadero City Attorney Patrick Enright (left) and City Clerk Marcia Torgerson (right) maintain that the city has not violated any public records acts.

# "No law protects the purging of e-mails," said Terry Francke, an attorney with Californians Aware and the author of CalAware Guide to Open Meetings in California. "How do they square the 90-day purging policy with the code requirement of storing public records for a minimum of two years?"

The access battle first erupted in May when local activist David Broadwater made a CPRA request for all Atascadero city communications mentioning Wal-Mart after city officials and staff denied any communication or dealings in regard to a proposed Superstore at the intersection of El Camino Real and Del Rio Road and was told, he said, that no letters, e-mails, or records of phone conversations or meetings existed.

Atascadero City Attorney Patrick Enright disputed allegations of lawbreaking during a July 11 council meeting.

"I don't believe we have violated the public records act as far as the e-mail," he said at the meeting. "And as far as violating the CPRA, we don't have to create records according to the First Amendment Coalition and the attorney general. Everybody agrees with that."

City Clerk Marcia Torgerson defended the city's policy, stating that transitory records may be purged after 90 days.

"E-mails, notes, and communications are considered transitory," Torgerson said. "If important, we could think about putting it in a file."

Attorney Francke doesn't agree.

"There is no provision in the law distinguishing the duty to preserve e-mails," he said. "To the contrary, two years ago, e-mails were added to the California Public Records Act as a record that must be preserved."

That's a sentiment also held by the director of the California First Amendment Coalition, Peter Scheer.

"E-mails are no different from letters or any other records public officials send that pertain in any way to official business," Scheer said. "However, spam and personal e-mails are not considered official business."

An Atascadero city employee who asked to remain anonymous claimed that the reported purging policy hasn't actually been enacted and that city computers are packed with e-mails more than 90 days old regarding Wal-Mart.

In the first week of August, e-mails of Atascadero city staff members and elected officials were leaked to New Times. Some are more than a year old and indicate that some members of the planning commission were in the loop regarding Wal-Mart discussions as far back as September 2005.

Mayor O'Malley, attorney Enright, and City Manager Wade McKinney did not return more than a dozen phone calls seeking comment.

In a related turn of events, e-mails have been raising questions in yet another Atascadero controversy.

Ever since New Times reported a February 2005 incident ("Caught in the act," Oct. 27, 2005) in which then-Redevelopment Agency Deputy Director Marty Tracey allegedly threatened downtown property owners Pat and Sue Gaughan with the possibility of eminent domain, Atascadero city officials have repeatedly denied any knowledge of plans to take the land through eminent-domain litigation.

Since that flare-up, city officials have painted Tracey as a rogue employee with his own agenda.

However, anonymously leaked e-mails between McKinney and Tracey dating from late February 2005 seem to indicate some sort of discussion regarding the Gaughans. In an e-mail dated March 22, 2005 also regarding the Gaughans City Manager McKinney wrote: "I am very glad to see the eminent domain is headed forward. I think this is the real answer."

Calls to McKinney seeking comment or confirmation of the e-mails were not returned.