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.


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: <>.


Harry Hammitt  |  Contributing Writer