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Tuesday, January 22, 2008

Law - Should government employees be deleting their emails?

This month's issue of Governing.com has an important article by Ellen Perlman titled "Delete at Your Own Risk: Governments need a system for managing their mountains of e-mail. Very few have one." Some quotes:

For several months last fall, the St. Louis media had a field day with Missouri Governor Matt Blunt's office for doing the equivalent of crumpling up important office correspondence and tossing it away. Employees weren't using a wastebasket, though. They were tossing out messages by clicking "delete" on their computers. Staff members insisted there was no written policy in their office on saving and deleting the e-mails. They said they routinely erased the messages because they didn't view them as part of the public record.

Most other state offices were quick to disassociate themselves from this approach. The attorney general, the secretary of state and the auditor all announced that, unlike the governor, they treated e-mails as public records and retained them accordingly. Finally, in November, Blunt put an end to the controversy by announcing his own stringent new policy. A "permanent" e-mail retention system would be created, and employees would no longer be able to make case-by-case decisions on what to save. The governor gave his Office of Administration the task of developing technical systems to permanently save every single state government e-mail. He didn't say how much that would cost or how much additional storage would be needed.

Missouri's is not the only government that has been stumbling over vague or non-existent e-mail policy. Millions of state and local employees in jurisdictions all over the country correspond by e-mail every day without giving much thought to what should happen to the product. They may come to regret that behavior. Not only are records, and history, being lost, but many government lawsuits now turn on what is buried in old e-mail messages. Government policy simply has not kept up with the evolving technology. "At the moment," according to Charles Davis, of the National Freedom of Information Coalition, "everyone is looking up and saying, 'Maybe we ought to be keeping this stuff.'" But few have come up with clear rules governing where and how to keep it. * * *

In general, though, it's proving difficult for archivists and other information technology specialists to get across the message that government documents sent via e-mail can't be viewed as ethereal missives. E-mail is simply another way to distribute a public record. As time goes on, courts are likely to hold governments increasingly responsible for organizing and saving those records in exactly the way they would save paper records. Logically, that would require them to set policies for computer use and offer training on how to properly handle and retain e-mails. Few do.

The whole problem is complicated by the fact that government workers use their office computers for a huge variety of purposes, many of them official but many personal or even questionable. Employees in state and local government use e-mail and the Internet to do their taxes, run eBay businesses, upload to YouTube and plan lunches and other personal events. If a government tolerates those uses, it seems a bit excessive to demand that every lunch invitation be saved and stored in perpetuity for public inspection.

Some states are beginning to deal with the problem by creating clearer rules for what employees can and can't do with their computers on office time. * * *

One of the reasons governments aren't managing e-mail well is that it doesn't take up any physical space. If the amount of information now being clicked back and forth were still on paper, it would bulge out of filing cabinets. Agencies couldn't let the piles stack too high. With the advent of electronic storage and search capability, there's a strong inclination on the part of many governments not to do much of anything. If they need something, they assume they can find it. If someone deletes it, they aren't inclined to worry. "We're so busy generating and consuming and digesting information," says Adam Jansen, the deputy archivist in Washington State, "there's no time left in the day to manage it."

PRESSURE FROM THE FEDS. In fact, though, if there was any doubt about the importance of public e-mail management, it should have disappeared in December 2006, with a change in the Federal Rules of Civil Procedure. Under those rules, state and local governments that become litigants in a federal case will have to produce any electronic information considered relevant to the case. If they can't easily retrieve e-mails because they haven't established an efficient way to store them, it's going to cost a lot in staff time. Employees might have to review millions of e-mails to find which ones deal with the plaintiff. If they've deleted crucial e-mails that are public record, that creates other issues.

There is much more to read in this article.

Last week Mark Schaver, the "computer-assisted reporting director" for the Louisville Courier Journal, had an entry in his blog, Depth Reporting, headed "Should government workers be deleting their email?" He pointed out that "The Indiana Commission on Public Records offers guidelines (PDF) to Indiana agencies." Here is a quote from the 7-page Indiana document:

Policy:

E-mail is a public record All e-mail conducted on state government computers is owned by the state of Indiana and is a public record. Indiana Code 5-14-3-2 defines a public record as:

any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.
The General Assembly essentially precludes any state agency or state employee from determining individually what is or is not a record: anything, on any medium and created for any governmental purpose, falls under the rubric of public records law. Consequently, all e-mail messages are public records and are subject to record retention requirements. For the purpose of satisfying public records laws, e-mail is defined as not only the messages sent and received by e-mail systems, but all transmission and receipt data as well.

Electronic Mail (E-mail) is not a record series for retention scheduling purposes. Rather, the retention of E-mail must be based on content, not media type. E-mail should be retained for the same duration as other records of similar content included in a given record series on an approved retention schedule.

Responsibilities:

All agencies are responsible for developing guidelines and procedures to manage e-mail messages as part of their overall record-keeping systems. Agencies must maintain their E-mail in a manner that complies with approved retention schedules and the records management practices already established for other media as required by law.

The ILB has found a veto message issued by Governor O'Bannon on May 10, 2001 dealing with the question of access to legislative emails. (Of course, access is different from preservation.)

On the federal level. Serendipitously, the Washington Post today has a lengthly story today by Elizabeth Williamson and Dan Eggen headlined: "White House Has No Comprehensive E-Mail Archive: System Used by Clinton Was Scrapped." Here is how it begins:

For years, the Bush administration has relied on an inadequate archiving system for storing the millions of e-mails sent through White House servers, despite court orders and statutes requiring the preservation of such records, according to documents and technical experts.

President Bush's White House early on scrapped a custom archiving system that the Clinton administration had adopted under a federal court order. From 2001 to 2003, the Bush White House also recorded over computer backup tapes that provided a last line of defense for preserving e-mails, even though a similar practice landed the Clinton administration in legal trouble.

As a result, several years' worth of electronic communication may have been lost, potentially including e-mails documenting administration actions in the run-up to the Iraq war.

White House officials said last week that they have "no reason to believe" that any e-mails were deliberately destroyed or are missing. But over the past year, they have acknowledged problems with archiving, saving and finding e-mails dating from early in the administration until at least 2005.

The administration's e-mail policies have been repeatedly challenged by lawmakers and open-government groups, in congressional hearings and in court. Two groups, the National Security Archive and Citizens for Responsibility and Ethics in Washington, have accused the White House in lawsuits of violating the Federal Records Act because of what they say is its failure to preserve millions of e-mails, a charge the White House rejects.

The White House's record-keeping problems have thrown new attention on a gap in statutory language covering the retention of presidential records.

"If it is a presidential record, then it does need to be retained. It doesn't matter what the format is -- e-mails can be records," said Susan Cooper, a spokeswoman for the National Archives and Records Administration. But the agency has no power to intervene if an administration is not preserving presidential records, inadvertently or not, Cooper said.

The law governing nonpresidential federal records is stronger. The National Archives can demand an explanation from any federal agency that it suspects is mishandling records, and it can request a Justice Department probe. Private parties can sue to force compliance with federal records laws, but not the presidential-records statute.

Controversy surrounding the Bush administration's policies intensified on Thursday, when the House Oversight and Government Reform Committee released details of a briefing by White House special counsel Emmet T. Flood, in which he disclosed that a 2005 White House study had identified 473 separate days in which no electronic messages were stored for one or more component offices.

Posted by Marcia Oddi on January 22, 2008 01:23 PM
Posted to General Law Related | Indiana Government | Indiana Law