California High Speed Train Needs to Slow Down

David Williams

June 6, 2012

In politics, there are not a lot of issues that people agree on.  The one area that there is such an agreement is for government to be transparent and accountable and California’s beleaguered $68 billion bullet train project may be bringing people together in a most unexpected way since people from both sides of the tracks on this project (pun intended) are concerned about the lack of transparency and shenanigans surrounding the train.  Since the project’s beginnings, lawsuits and questionable dealings have surrounded the train.  It’s risen to such a level that not only is a congressional committee concerned, but the Government Accountability Office has also started to investigate the expenditure of federal funds for the project.  

According to California Watch, these concerns have led to requests from lawyers and others suspicious of the bullet-train project to pore over “the California High-Speed Rail Authority’s trove of documents, looking for evidence.”  The article also noted that “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 timing of this rule’s implementation piques one’s interest, especially considering that the statement, as reported above, flies in direct defiance of a letter from Rep. Darrell Issa (R-Calif.), Chairman of the House Oversight and Government Reform Committee.  In his April 9, 2012, letter, the lawmaker warned that the rail authority should “preserve all documents and records, including e-mail, electronic documents, and other electronic data (electronic records), created since January 1, 2009…”  Despite the California Rail Authority’s previous position, Thomas Fellenz, chief counsel and acting chief executive officer for the rail authority, has now assured investigators that no information would be discarded until after Rep. Issa’s probe is complete.  Looks like somebody or in this case, the bureaucrats tasked with executing this project, were caught red handed as they attempted to erase all evidence of possible wrongdoing and likely misspending of federal dollars.

While we don’t know the outcomes of the investigations and lawsuits, we do know that the rail authority chose a curious time to implement an email retention policy.  It’s curious because the policy was crafted around the same time they began receiving requests for documents.  Oddly enough the documents sought after are the same ones that would be deleted should the new policy be enacted Fellenz attempted to explain away this coincidence by noting that “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… ‘There’s a five-year backlog.’” Given this multi-year backlog it becomes even more suspicious why the rail authority chose to propose a 90-day policy.  Not only is the action a matter of questionable timing, it’s also interesting that it would be applied retroactively. 

Peter Scheer with the First Amendment Coalition explained that“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….Mistakes can occur, depending on whether the person making the decision knows the rules.”  This fact should prompt much consternation among government watchdogs everywhere.  By these standards, the rail authority staff could essentially concoct and arbitrarily apply standards for email deletion as they erase the emails.  The only thing that limits an employee from destroying conceivably every email is his own imagination.  Scheer continued by astutely stating the obvious: “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.”

For now at least, it appears that one bullet (train) has been dodged since the rail authority’s email retention policy has been halted indefinitely.  Taxpayers and advocates of an open and honest government should remain concerned that this project may have gone forward with no paper trail and demand accountability from every level of government.

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