Why is Mayor Karen Bass deleting her text messages?
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When flames erupted in Pacific Palisades on Jan. 7, Los Angeles Mayor Karen Bass was more than 7,000 miles away, on a diplomatic mission to Africa.
Bass headed home shortly thereafter and was in transit for nearly 24 hours as the fire ravaged the Palisades and surrounding communities.
She and her office have said she was in constant communication during that period. But it’s impossible to know exactly what she was communicating, because her messages were not saved, according to a city lawyer.
“Her phone is set not to save text messages,” said the lawyer, David Michaelson.
Michaelson said that there is “no requirement that a city official or employee save text messages,” despite the fact that the city’s own document retention policies dictate that most records should be kept for at least two years.
Under state law, “any writing” related to the conduct of government is deemed a public record. On Jan. 10, The Times filed a public records request for all text messages sent or received by the mayor while she was in transit on Jan. 7 or Jan. 8 that mention fire response or her travel plans.
Bass has come under heavy criticism for being out of the country when the fire erupted amid a historically dry winter and forecasts of hurricane-force winds.
With Mayor Karen Bass far from L.A., Rick Caruso, her opponent in the 2022 election, swept in to fill the gap, blasting the city’s handling of the wildfires.
Nearly two months later, on Thursday, Bass’ office said it had “no responsive records,” without stating whether it was withholding any records or any reasons for not producing the records.
On Friday, responding to questions from The Times, Michaelson said that Bass’ phone auto-deletes text messages and has for at least two years.
Los Angeles Administrative Code Section 12.3(b)(6) dictates that most records “shall be retained for a minimum of two years unless a shorter period is otherwise permitted by law or a longer period is otherwise required by law, or unless, consistent with state law, a different period of retention is established by order or resolution of the Council.”
Michaelson argued that Section 12.3(b)(6) does not apply to texts, relying on a state attorney general opinion from 1981, long before text messages became a commonplace means of communicating.
“As articulated in an Attorney General opinion, a record that must be retained is made for the purpose of providing future reference,” Michaelson wrote in an email. “Texts are ephemeral types of electronic communication, to use Supreme Court words, that afford ‘fleeting thoughts and random bits of information’ that provide an ‘ease and immediacy.’ Texts are not intended to provide future reference for the author or recipient let alone a public official record.”
The Supreme Court decision cited by Michaelson, however, held that San José public officials’ text messages on personal phones were public records that had to be disclosed if they related to government business. The state public records act has no specific provisions for document retention.
First Amendment Coalition Legal Director David Loy disagreed with Michaelson’s interpretation and argued that the texts should be retained.
“Yes, text can be considered ephemeral, just like emails,” Loy said. “But as I read the plain language of L.A.’s own administrative code, the city imposed upon itself a more stringent record retention requirement than state law might otherwise require.”
Kelly Aviles, an attorney and public records expert who has represented The Times in unrelated litigation, said the explanation offered by Bass’ lawyer is flawed.
A mayor does not get to determine what is or is not a public record based on the device used, Aviles said, adding that such logic would invite officials to delete emails and voicemails they deem “ephemeral.”
Under the state public records act, Aviles said, “it’s the content of the communication, not the method of communication, that is important. If it relates to the conduct of public business, it is a public record that’s disclosed.”
“The idea that they think they can delete whatever they want, whenever they want, is not in compliance with the law at all,” she said.
Aviles also took issue with Michaelson’s citing of the city code.
“The city code doesn’t trump state law,” Aviles said. “The fact that they have an inaccurate understanding of what state law requires doesn’t help them.”
In response to public records requests, other agencies and public officials have released a multitude of records from the early days of the fire. California law dictates the release of these kind of records, unless there is a specific exemption.
Los Angeles officials on Tuesday abruptly stopped a longstanding policy allowing employees to communicate using Google Chat messages that were automatically deleted after 24 hours.
Bass left Accra, Ghana, about 9 p.m. on Jan. 7, or 1 p.m. Los Angeles time, as the fire grew, traveling the first leg on a military plane, where she was able to make phone calls and communicate by text and email.
Early the next morning, she boarded a commercial flight at Washington Dulles International Airport and would have been able to communicate only by email and text before arriving at Los Angeles International Airport at 11:24 a.m. on Jan. 8, according to her itinerary and flight records.
Bass has said that she was on the phone throughout the military flight from Accra to Dulles, and her staff has said she was actively involved in decision-making while abroad. She was also communicating via text message during that leg of her trip, according to at least one public official.
Los Angeles County Supervisor Kathryn Barger said Jan. 8 that she had been texting with Bass the night before until 10:30 p.m. Los Angeles time, which would have meant they were texting as Bass flew from Africa to Washington, D.C.
“Trust me, she’s very engaged. Very engaged,” Barger, whose district includes the Eaton fire zone, said Jan. 8 of Bass and her texts.
In response to a public records request from The Times, Supervisor Lindsey Horvath’s office released a text message exchange between her and Bass.
At 11:50 a.m. Los Angeles time on Jan. 7, Horvath, whose district includes Pacific Palisades, texted Bass.
The politicians’ private texts highlight an increasingly fractious relationship between two of the most powerful women in Los Angeles.
“Reaching out about Palisades fire. I understand our County Fire Dept is supporting City and our Office of Emergency Management has been in touch with City staff, also. Do you need additional help/ support? Anything you want to put on our radar at this time?” Horvath wrote Bass in a text message that Horvath’s office provided in response to a public records request from The Times.
Bass responded at 1:07 p.m. Los Angeles time, or just after 9 p.m. Ghana time, when she would have been on her way back home.
“Thanks for asking I think we are good—I’ll call you in the am,” Bass wrote.
Times staff writer David Zahniser contributed to this report.
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