Rail authority policy to purge e-mails draws critics' ire

Meanwhile, this proposal for the largest public works project in California history is the target of a flurry of lawsuits filed by local governments and opposition groups.

All those investigators, lawyers and bullet train critics want to pore over the California High-Speed Rail Authority's trove of documents, looking for evidence.

So it's an unusual time to purge five years' worth of bullet train project e-mails, critics say. Nevertheless, that's what the agency is contemplating.

In February, the rail authority filed papers with the state saying it intended to enact a new policy to destroy its e-mails after 90 days.

Then, on May 1, in response to a request for information from a project critic, the rail authority said it could not produce e-mails that were older than 90 days, citing the new policy.

The rail authority's lawyer downplayed the issue's significance, but it has caused concern among high-speed rail critics, who say they fear the authority is jettisoning important information about how the expensive project is being shaped.

The new e-mail policy is "highly suspect," said Kathy Hamilton of the Community Coalition on High Speed Rail, a San Francisco Peninsula group that opposes the bullet train. The project would link San Francisco and Los Angeles with trains traveling up to 220 mph.

It was in a letter to Hamilton that the rail authority first revealed its new e-mail policy.

In a phone interview, Hamilton said she didn't believe the rail authority had already discarded the e-mails she sought – exchanges between the staff and a panel of rail experts called the peer review group. In the past, the group has criticized the bullet train plan's financial projections.

"If they are being investigated and they have been dumping e-mails, they would be in all kinds of trouble," Hamilton said of the rail authority. She said she had forwarded the letter about the e-mail policy to the staff of U.S. Rep. Darrell Issa, a Republican from Vista and chairman of the House Committee on Oversight and Government Reform.

Issa's committee is investigating alleged misspending of federal funds on the bullet train project. In a letter last month, the lawmaker warned the rail authority to preserve two years' worth of documents, including e-mails, so his investigators could review them.

In a phone interview, Thomas Fellenz, chief counsel and acting chief executive officer for the rail authority, said the e-mails sought by Issa have not been discarded.

Fellenz said all state agencies are supposed to have a policy on retaining documents, including e-mails. But the rail authority had never enacted a policy regarding e-mail, he said. Most state agencies delete e-mails after 90 days, he said. The rail authority's staff will cull the e-mail, saving documents that "we think, for business or legal reasons, we need to retain" and dumping the rest, he said. There's a five-year backlog. But nothing will be discarded until after Issa's probe is complete, he said.

"We will be completely responsive to the committee," he said. "We stayed our implementation (of deleting e-mails) – we have this investigation ongoing."

Fellenz acknowledged that the rail authority does indeed have the e-mails Hamilton had sought in her request, which she made under terms of the state Public Records Act. The authority has sent her another letter saying it would give her the e-mails she requested, he said.

State law sets guidelines on how many years specific types of records must be retained by public agencies. E-mails that aren't considered "substantive" can be deleted upon receipt, said Peter Scheer, executive director of the nonprofit First Amendment Coalition advocacy group. Mistakes can occur, depending on whether the person making the decision knows the rules, he said.

"When you have ordinary staff deleting or destroying e-mail based on their own understanding of the law, you are inevitably going to be destroying lots of public records," he said.

David Schonbrunn, a plaintiff in an environmentalist lawsuit that challenged the high-speed rail project's proposed route over the Pacheco Pass in Santa Clara County, said he suspects the rail authority routinely destroys e-mails that would provide useful insights into its decisionmaking.

Schonbrunn said part of the lawsuit turned on whether the rail authority had altered a computerized "travel mode demand model" that had been used to plot the best route to link the Bay Area with the Central Valley. The plaintiffs believed the model had been tweaked to make the Pacheco Pass route seem more attractive than an alternative route over the Altamont Pass, he said. During pretrial investigation, the plaintiffs found evidence that the model had indeed been changed, said Schonbrunn, a paralegal who worked on the case.

"But because the e-mail was destroyed, we were unable to get somebody giving the instructions for that to be done," he said.

"An awful lot of business is transacted using e-mails, and when those are deleted, you're losing the entire history."

View this story on California Watch

Story courtesy of our media partners at California Watch (A Project of the Center for Investigative Reporting)

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