E-mail retention policies

Whether states conclude that electronic communications constitute open records, public meetings or both, the sheer volume of such records raises essential issues regarding their maintenance.

A recent Ohio opinion stated that a state law that would give government employees the authority to delete work-related e-mail was unreasonable because it would “authorize the unfettered destruction of public records,” and that if such messages are deleted in violation of statutory obligation, it would constitute a violation of Ohio open records laws.

Confusion arises where courts — and government officials themselves — have to decide what must be kept and what may be deleted without always having clear guidelines or parameters. Even in cases where e-mail messages are considered public records, laws are frequently silent on whether any messages may be deleted, and if so, after how long. In the Ohio case, officials were not wrong to have disposed of items that were “no longer of administrative value” and “not otherwise required to be kept, in accordance with the office’s properly adopted policy for records retention and disposal.”

Several high-profile records requests and lawsuits have been filed in recent years to challenge the frequency with which officials are allowed to delete job-related e-mail. Missouri Gov. Matt Blunt in December settled a lawsuit that arose from a whistleblower’s outing of Blunt’s plan to regularly delete office e-mail messages he wanted to keep away from news outlets and constituents — an open records violation. A settlement in the case called for the governor’s office to turn over thousands of e-mail messages to a special investigator.

Texas Gov. Rick Perry’s office has a policy of deleting office e-mail once a week — a policy that has been in place since George W. Bush held the office in the late ’90s. John Washburn, a blogger from Wisconsin, took issue with this short time period for e-mail retention and set up a computer-generated process to repeatedly request the governor’s e-mail. Though the governor’s office ultimately was willing to comply with the request, it presented Washburn with a $568 bill for its efforts in compiling the first four days’ worth of requested e-mail messages. Washburn eventually paid the office’s fees with the help of donors and posted the e-mails online.

And in North Carolina, after a controversy erupted over reports that the governor’s press office ordered the state Department of Health and Human Services to delete e-mail addressed to Gov. Mike Easley, the governor himself commissioned a study in which journalists and administrative law specialists developed recommendations for how his office should manage its e-mail communications. But the recommendations, which included treating electronic records the same as paper records and mandating policies including training and archiving messages, are not legally binding.

E-mail retention policies likely will generate increasing amounts of litigation — and deservedly so. In states where the issue has not been settled by statute or case law, there are effectively no bright-line legal mandates requiring officials to retain e-mail records for a given period of time. This presents the risk of officials doing what Blunt and Easley were accused of — deleting e-mail to duck state sunshine law requirements.