"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 bill which would give the state archivist responsibility for developing a model retention policy that agencies can use as a benchmark. "It's not the law that's insufficient," Petersen said. "It is practice that is not sufficient."
State governments have generally not developed retention schedules. In California, for example, e-mail records are stored in a data center for six weeks after they are erased from an employee's PC. But this is intended as a backup for employees who accidentally erase a message they intended to keep, not for record retention.
ARMSTRONG V. EOP
Some potential solutions to this issue may be coming from developments on the federal level. In response to a lawsuit over Iran-Contra affair e-mail records, the National Archives and Records Administration (NARA) has been developing rules and procedures for scheduling and retaining records which could be a model for state governments to follow.
The lawsuit, Armstrong v. Executive Office of the President, was brought at the end of the Reagan administration to prevent National Security Council e-mail backup records from being erased. Researchers were using the records to piece together the controversial arms sales to Iran and funding of Nicaraguan rebels. They found the e-mail records especially valuable because they often give clues on who knew what about the scandal and when they knew it.
The U.S. district court judge hearing the case prohibited the Reagan administration from erasing the records. The suit was still pending when the Bush administration was leaving, and the court prohibited them from erasing their records as the Clinton administration arrived. To resolve the lawsuit, NARA is developing policies for retaining substantive e-mail records so that procedures are in place by the end of the Clinton administration.
The court said that government e-mail is a public record if substantive information was communicated. Agencies don't have to keep "all scribbles and off-the-cuff comments," the court said. But, the district court said, the Federal Records Act of 1976 obligates agency heads to "make and preserve records containing adequate and proper documentation of the organization, ... procedures and essential transactions of the agency."
PROPOSED RULES
The NARA published preliminary rules in the March 24, 1994 Federal Register to solicit comment. Thomas Brown, chief of NARA's Archival Services Branch, said it is likely that after revision, the proposed guidelines will be published for further comment before being finalized.
In the rules, "we explain that the electronic mail system can transmit material under the Federal Records Act," Brown said. "But if you transmit record material, it has to be handled [using] federal procedures."
Under the proposed guidelines, the first step is for the employee creating an e-mail message to determine if the message is public record material. If it is public record material, then agencies need to move a copy of the record to an electronic storage system. Some agencies may have to put in a storage system because many local area networks and servers are designed for communication and often don't have retention capability.
Printed copies of the message are insufficient for retention on many systems because the paper copy often doesn't include important information such as who the message was sent to and when. Such information is important in public records because it helps give the message context.
Another storage requirement proposed by NARA is that retention procedures must allow the separation of permanent and temporary records. Temporary records need to be scheduled for retention periods depending on their content and context.
DEFINING PUBLIC RECORDS
State and local governments, which are increasingly using e-mail, need to begin developing procedures for storing messages when they pertain to substantive policy - or prohibit e-mail use for policy-making.
If e-mail is determined to be a public record, then retention methods and procedures need to be developed. The content and context of messages needs to be determined, then scheduled, because some messages are not public records and can be erased. "What you want is to schedule forms, not the medium," Cox said.
In the future, it may be possible to use artificial intelligence to examine a message and determine its scheduling automatically, or give the employee retention choices based on the message's context. "But for now, the software hasn't been written," said Brown. "It depends on human judgement."
