The city of Colorado Springs has no safeguards in place to ensure that the public has access to emails from government officials, who can delete them on a whim.

The City Attorney’s Office said Wednesday that “the city does not have a policy for keeping emails unless the emails are subject to a litigation hold.”

The Gazette inquired about the city’s records retention policy after City Councilman Bernie Herpin said he deleted a recent email in which El Paso County Treasurer Bob Balink chastised him for asking the city clerk to redraw council districts to his advantage.

“I guess in the future, I’ll just delete all emails and then won’t have to worry about it!” Herpin said in an email to the newspaper.

The public was entitled to the email that Herpin deleted, said Kelly McBride, senior faculty at the Poynter Institute, a Florida-based journalism school.

“Anytime powerful people can do their work behind closed doors, there’s the possibility of corruption, incompetence or ill-will guiding their decision and you as a citizen have no way of knowing that unless you can see how they’re doing their work,” she said.

The newspaper filed an open-records request with the city for Balink’s email to Herpin about the redistricting push as well a separate email in which Balink razzed Herpin for going on a $25,000 water tour with 73 others last week even though he had gone before.

The city turned over the email exchange about the water tour hours after City Councilwoman Angela Dougan provided it to The Gazette. Balink had sent the emails to Dougan after Herpin criticized Dougan in the email.

But the city’s legal department said the other email was unavailable because Herpin had deleted it and that it was “questionable” whether Herpin was required to release “certain email communications on his personal computer.”

Even when emails haven’t been deleted, the city relies on an honor system for public officials to turn over documents requested under the Colorado Open Records Act.

Aside from saying he deleted the email, Herpin maintained he didn’t have to turn it over because he considered it a private communication with a longtime friend and mentor.

But Steve Zansberg, a lawyer who specializes in First Amendment law, said the deleted email was a public document.

“The location or the server on which on an email is sent or received is irrelevant,” he said. “All communications whose contents bear a demonstrable connection to official government business are public records and the mode or format in which those communications are transmitted or housed or stored is irrelevant.”

The issue of retaining records isn’t as clear, Zansberg said.

But he noted that Colorado Springs is listed among the cities and towns that have adopted the records retention schedule of the Colorado State Archives. The schedule outlines the type of emails and other government documents that should be retained and for how long.

The city’s chief communication officer, Cindy Aubrey, said she could neither confirm nor deny that Colorado Springs had adopted the state’s records retention schedule. The state archivist could not be reached for comment because the archives office is closed Wednesdays, according to a telephone recording.

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Colorado Springs City Hall Photo by The Gazette file