One of the most difficult electronic access problems for government agencies to deal with has been the unresolved status of e-mail records. According to federal case law, it is amply clear that e-mail messages are records based on their content, not their medium. In other words, e-mail transmissions are records if they deal with the decision-making process or shed light on the way in which the agency goes about its business. If they are lunch invitations or idle chatter, they are probably not records. This is the same distinction made for paper records. The definition of what constitutes a record varies. For example, there is no actual definition except by inference in the federal Freedom of Information Act, while many state open records laws have quite broad definitions of records.
The National Archives and Records Administration (NARA) is responsible for defining the parameters of e-mail on the federal level, and after largely ignoring the issue as e-mail systems began to take hold in the federal government, NARA has finally put together regulations concerning the preservation of e-mail records that closely parallel the requirements for paper records.
The impetus for these regulations was judicial guidance from a series of federal court decisions in a case brought by the National Security Archive, a foreign policy and national defense repository and research institute in Washington, D.C. The Archives sued the Executive Office of the President when it heard that the National Security Council -- as part of the transition from the Reagan administration to the Bush administration -- was planning to delete the entire contents of its e-mail system to make room for the next administration. A district court judge ordered the government to retain back-up tapes still in existence until the courts could rule on the issue.
What the courts decided was that e-mail messages were not as ephemeral as telephone messages, that many of the communications were of a substantive nature and must be preserved. To help put this set of circumstances in perspective, part of the records at issue here were the back and forth e-mail transmissions between Oliver North, John Poindexter and Robert McFarlane concerning sending arms to Iran and funding the Contras in Nicaragua. No matter what your personal opinion of such activities, the content of these messages was certainly substantive.
PAPER NOT GOOD ENOUGH
The courts also found that these messages could not be preserved merely by making a paper copy because the electronic version contained substantive information -- specifically, date of transmission and the persons receiving the message -- that was not available on the paper copies. Finally, the courts concluded that the National Archives had not provided proper guidance for the identification and preservation of archivable e-mail records.
NARA's guidance, which originally appeared in the Federal Register on March 24, 1994, and was revised in a Register notice on Aug. 28, 1995, is the first comprehensive attempt to answer questions about retention of e-mail records. NARA's responses to agency comments concerning the regulations note that "agencies should ensure that e-mail messages that document their policies, programs and functions are appropriately preserved. Therefore, agencies must put into place polices and procedures that ensure that e-mail records are identified and preserved."
The National Archives added that "by placing e-mail provisions in context with the overall requirements agencies already have for appropriate creation, maintenance and disposition of federal records, NARA has stressed the importance of recordkeeping requirements regardless of media, and, at the same time, reinforced the need to consider e-mail as an important tool for records creation and receipt. E-mail records are no more and no less important than other records."
The National Archives has chosen to place e-mail on the same level as any other kind of document, a common sense conclusion. Addressing concerns that e-mail would take on an inflated importance under the regulations, NARA pointed out that "if agencies fail to create and maintain on another format full documentation of their policies and activities under clear and specific recordkeeping requirements, e-mail could assume an inflated importance."
In other words, the more emphasis agencies put on e-mail as the primary method of creating records, the more e-mail records will require retention. If e-mail becomes only one of several methods of creating records, e-mail retention will be necessary only in the context of the overall record-keeping process.
FOI IN BC
One final note concerning legal interpretation. David Flaherty, British Columbia's Information and Privacy commissioner, issued a ruling late last year concerning whether the government must search back-up tapes for e-mail messages. Although Flaherty's ruling was premised on his finding that such a search was unreasonable because there was not even any evidence that such messages existed, he found that the back-up tapes were not agency records subject to the province's freedom of information act requirements. His ruling is one of the first to draw a distinction between back-up tapes -- which are created primarily for use in restoring a computer system after a crash -- from the content of the documents stored on the tapes. He found that extraction of specific messages from back-up tapes was an involved and laborious process that constituted an unreasonable burden on the agency.
Flaherty's conclusion sits well with the National Archive's guidelines. NARA uniformly warns agencies not to rely on back-up tapes as a records retention device. Instead, by separating e-mail messages that describe and memorialize government decision-making from those peripheral messages that are more personal than institutional, the guidelines emphasize that agencies must identify and provide for the maintenance of such documents before they are relegated to back-up tapes. For those who are grappling with the creation and implementation of an e-mail policy, the NARA guidelines are an excellent starting place.
Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: <email@example.com>.