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Montana State Archives Don’t Contain Emails, Despite Open Government Law

The state archives are supposed to be the final destination for the most important records about state government and how leaders made their decisions.

(TNS) — Not a single email is stored in the state archives, even though Montana leaders have used them to conduct state business for decades and state law requires emails of importance to be preserved.

The mass and routine deletion of emails gained attention in campaigns nationwide this fall. In Montana, Republicans centered attacks on the realization that no emails existed from Democrat Gov. Steve Bullock’s term as attorney general. But the problem is more widespread.

“It’s all over the place,” Senate Majority Leader Fred Thomas, R-Stevensville, said of the way the state currently manages records. “State law is being violated.”

The state archives are supposed to be the final destination for the most important records about state government and how leaders made their decisions. The fact no emails have made it that far — despite being the modern equivalent of letters and memos that stock archival shelves — is a sign something is wrong. Experts describe a two-pronged problem: Agencies are deleting emails too soon, and the archives do not have the storage or equipment to accept them.

As a result, Montanans have lost decades of public information.

Records managers, journalists, and historians say improvements to rules, funding, and culture are needed to prevent further losses that violate the public’s constitutional right to know what government is doing.

National experts say a failure to manage electronic records properly can cause many problems, including opening up states to lawsuits, risking the release of personal information about residents, losing critical insights about past decisions or operations, weakening public trust in government, and driving up bills for digital storage that would not be needed with smarter management.

“We live in a Google society. People go onto the internet, Google something, and get an instantaneous result. They expect the same from their government. When they don’t get it, they think government is hiding something,” said Mary Beth Herkert, Oregon’s state archivist, who has worked with national organizations to develop best practices for electronic public records. “Government needs to be transparent, accountable, and accessible.”

Joe DeFilippis, who leads records management for Montana’s executive branch, agreed but said, “For some things, our retention practices might be out of touch.”

Unlike some states that merge archival and records management functions, the responsibility to maintain public records is divided in Montana between the records manager at the Secretary of State's office and the archivist who works under the governor. Legislative and judicial records are overseen separately.

In practice, retention decisions are made by individual state agencies, and few of them have preserved emails consistently, if at all, according to dozens of interviews and results of records requests made by Lee Montana Newspapers.

Montana is not alone in struggling to provide transparency in the digital age. Because email is used by government employees for so many different purposes, it has been a particular challenge for states to manage.

“It’s like the old fashioned desk inbox, but no box to sort it. It’s the largest record-holding system in any state, but it’s not a records management system,” said Vermont State Archivist Tanya Marshall, spokeswoman for the National Association of Government Archives and Record Administrators. “Most states are sitting on terabytes of data that hasn’t been managed.”

Email is only part of Montana’s ongoing struggle to preserve electronic files as public records. State officials still must develop or update strategies for other formats, such as text messages, social media posts, digital maps, and data collected by license-plate readers.

Some officials point to a cleanup of the state’s public records law in 2015 as a first step toward improvement.

The rewrite clarified the definition of public information to be flexible enough to adapt to new technologies. It also expanded membership on the State Records Committee, which writes guidelines, in an effort to increase awareness among a broader group of state employees. But the rewrite did not provide practical solutions for fulfilling open-government duties.

In broad terms, any record created by a Montana government employee in any format is public unless the law explicitly exempts it, such as some confidential records involving personnel and private information such as Social Security numbers.

Some records, such as an email asking a coworker to lunch, are considered “transitory” and can be deleted in 30 days without review. Other records, such as the governor discussing policy ideas with an industry lobbyist, must be retained for at least three years and even then cannot be destroyed without the permission of the State Records Committee. And the law requires some records to be preserved permanently.

But interviews and records reveal that many state agencies assume all emails are transitory and that none of the content would trigger longer retention. As a result, public records requests for emails routinely produce the response that none exist.

Such dead-end requests often involve employees who no longer work for the state. One month after a public employee changes agencies or leaves office, a state software system deletes all of that person’s emails. The automated system operates independently from records managers, typically meaning no one reviews the emails for preservation before they are destroyed.

The most high-profile example is the deletion of emails sent from 2009 to 2012 by Bullock and other Department of Justice staffers. It was discovered that no emails had been preserved when Yellowstone Club Founder Timothy Blixseth requested them as part of a lawsuit against the state. The governor's office did not respond to repeated requests for the name of the department's records manager at the time.

Another Lee Newspapers request for emails between members of the Protect Montana Kids Commission and Child and Family Services Administrator Sarah Corbally came up empty. Department of Public Health and Human Services Spokesman Jon Ebelt said her emails were deleted after her departure this spring — even though she was a central voice during the commission’s discussions about how to reform child protective services and many of the group’s recommendations will be reviewed by the 2017 Legislature.

When emails no longer exist, their content is not available for review, making it impossible to know how many would have legally required longer retention. Nonetheless, open-government watchdogs and historians argue it is highly likely that at least a few emails among those sent by top officials would have been important enough to trigger such retention.

“If those aren’t being captured and stored, then that really takes the legs out from underneath the public records law,” said Adam Marshall, an attorney for the Reporters Committee for Freedom of the Press. "The public records law can only provide access to what exists.”

John MacDonald, a lobbyist for the Montana Newspaper Association who previously worked as a reporter and editor for the Associated Press, agreed it is an important duty of government to preserve records.

“The departure of an elected official from office does not mean information created, used, or maintained by that official is suddenly no longer subject to our public information and public records laws,” he said. “We recognize that how information and public records are created and shared also creates challenges for how they are maintained, but that function is critical to how our government operates.”

DeFilippis said he currently recommends important emails be printed off for preservation.

The practice of printing out emails for retention has been used by some states since the 1980s, said former Kentucky Archivist Barbara Teague.

“But nobody would do that anymore,” said Teague, who leads the Council of State Archivists' State Electronic Records Initiative. That's because the practice frequently misses messages that must be retained and does not leverage search tools native to digital formats.

Current best practices promote preserving records in their original form or using archival software to convert them to other types of digital files as well as classifying electronic documents as they are created rather than waiting until they reach archives.

“You can’t manage electronic information manually. It just doesn’t work that way,” Herkert said. “It’s a huge change in philosophy to manage information on the front end. We’re so afraid of deleting anything, our systems are so crowded with junk it’s just not manageable or accessible.”

Montana Archivist Jodie Foley noted that the revitalized State Records Committee has improved discussions about records management in IT decisions and might someday lead the state to adopt software tools that make it easier to sort records according to legal requirements.

“The ultimate goal is for a lot of this to be automated to whatever extent we can afford so people aren’t overwhelmed by the vast amount of information we’re talking about,” Foley said, noting some agencies are testing a new file management system with some of those abilities.

The cost of an electronic records system for Montana would depend on the rules the state puts in place. But Oregon has adopted a system that they offer to other governments for $37 per employee per month, including installation, year-round support, and storage.

In Montana, a champion to lead improvements has not emerged.

Several elected leaders, including Bullock and Secretary of State Linda McCulloch, expressed uncertainty about whether the current email management and broader digital records practices need to be fixed at all.

A handful of legislators have proposed modest changes that do not line up with the priorities of state records managers and IT professionals. Legislators have failed to fund some improvements that have been requested, and governors have killed others with line-item vetoes.

Thomas said the discovery that the Bullock emails had been destroyed was a wake-up call. He has requested a bill draft to add an enforcement provision to state public records law. Currently, when records are not retained or released as required, there is no recourse except a lawsuit.

Incoming Secretary of State Corey Stapleton said he supports adding teeth to public records law or beefing up training, although he admits still having much to learn about how the current system works.

“We’ve got a lot of agencies doing their own thing, which isn’t bad. Everybody wants autonomy. I get that,” Stapleton said. “But the problem is that we have a lot of inconsistency, and the public probably deserves a certain baseline of compliance and of expertise.”

He also suggested that limiting the focus to emails is misguided.

“If I’m going to bribe you for $100,000, I’m not going to email you. I’m going to text you,” he said. “The ways people communicate to avoid communicating publicly are well ahead of our policies.”

McCulloch called enforcement premature.

“We haven’t decided what’s important yet,” she said. “If (records managers) are only doing a job a couple hours a month, things are going to slip through the cracks. Then who do you blame? The records manager? I mean, is that fair? ... They take this very seriously. They do as good a job as they’re allowed to do depending on the time they have to spend on it.”

“It’s something we need to address,” House Minority Leader Jenny Eck, D-Helena, said. “I just hope we approach it with a problem-solving mentality, not as a gotcha.”

Eck wondered whether the email issue might just be a convenient political target for Republicans. Bullock said the topic came up because they want him “to atone for or defend what the practices have always been.”

“When I left the office of AG, my email account, just like everybody else's that left, was closed,” Bullock said in October. “Yes, that effectively means those emails are no longer available. And that’s exactly what happened for every other employee there. That’s what happened also with Attorney General McGrath, Attorney General Mazurek, Attorney General Racicot, Governor Martz, and Governor Schweitzer.”

When asked if it would be a mistake to continue to delete all emails of elected officials, Bullock repeatedly said it was not on his priority list to make changes.

Public officials in Montana and nationwide have routinely expressed concerns about the cost of preserving emails and other digital records as required by law, said Doug Robinson, executive director of the National Association of State Chief Information Officers.

“How do you get attention and resources for something that doesn’t seem particularly exciting to legislators and the general public?” he said.

Herkert argued the investments are worth it.

“It’s one of those things you have to spend a little bit up front because in the long run you’re going to get huge cost savings,” Herkert said. “In the electronic world, what’s happening is that agencies are spending an inordinate amount of money storing information they don’t need to store, and they are settling lawsuits out of court because they can’t be sure they have everything they’re supposed to have.”

Thomas dismissed cost as an excuse not to act and suggested public records are important enough that some funding could be found even in a tight year.

“These things need to be brought to the Legislature,” he said, calling public records critically important to efficient and transparent government.

Foley agreed.

“The records we preserve preserve the rights of individual citizens,” Foley said. “If they don’t know what their government is doing and why they’re doing it, they’ve lost some of their right to know and the right to understand.”

©2017 The Montana Standard (Butte, Mont.). Visit The Montana Standard (Butte, Mont.) at Distributed by Tribune Content Agency, LLC.

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