As government employees increasingly use electronic mail, an emerging issue is whether or not the messages are public records that need to be archived and made available for public scrutiny. While governments have mostly mastered paper record retention and public access, procedures for e-mail are just starting to be addressed by governments at all levels.

"We had 1,000 years with books," said Richard Cox, a library and information sciences professor at the University of Pittsburgh. "Technology is changing so fast that the rules to deal with [e-mail] aren't there."

One reason governments have not developed retention procedures is that e-mail is still regarded as an administrative tool, said P. K. Agarwal, chief of the Office of Information Services in the the California Department of General Services. "When [the communication] gets to the stage of policy, it gets switched to paper," he said. "And increasingly, the switch is occurring later and later" in the process.

Public records and freedom of information laws were developed based on paper communication. These laws generally define public records as documents pertaining to policy and policy development, such as state manuals and agency documentation as they implement laws passed by a legislature.

When e-mail messages deal substantively with policy development or other communication that could be a public record if it was on paper, government employees and managers need to be aware that reporters, attorneys or activists investigating an issue may come looking for the records, which they may be entitled to under state public records laws.

STATE LAW

State public records laws differ across the nation in their definition of public records. Some states have sweeping general definitions while others list what is included.

In states with the broad definition, agencies are beginning to question if their e-mail is included as a public record. The Texas Department of Protective and Regulatory Services, for example, has asked the Attorney General for an opinion regarding e-mail's application to public records laws.

In a letter requesting their opinion, the department said that information "transferred between its employees by the electronic mail system is not public information." Because employees use e-mail for informal correspondence, such as requesting peer advice or communicating professional opinions, it is, in essence, "verbal correspondence between employees" and comparable to a telephone conversation. And, it added, if e-mail is opened to public scrutiny, it would "be extremely confining and detrimental to the freedom of employees."

Kimberly Young, a department staff attorney who helped draft the letter, said employees don't use the e-mail system for substantive policy communication that could be considered public record. "Important policy is done on hard copy," she said. "e-mail is not a formal system for us. We use it like the telephone." The department hasn't been subject to challenges or requests regarding its e-mail, and the motivation is to get a legal determination on the matter, Young said.

FLORIDA'S SUNSHINE

The Florida Legislature is also examining the issue of e-mail and public records. Although e-mail isn't specifically mentioned in the state's sunshine law, "There is no question that it is a public record," said Barbara Petersen, staff attorney for the state Legislature's Joint Committee on Information Technology Resources. But the issue is that agencies "haven't considered e-mail as a public record. It's more of a managerial problem."

Florida's government is looking at what procedures should be adopted by agencies so that e-mail that should be retained for public record is scheduled for retention. Some types of messages need to be stored longer than others, and determining this scheduling can be challenging, Petersen said.

The committee is working to amend the state's statutes and plans to introduce legislation later this year which would specifically make e-mail a public record. But more important would be provisions in the