Erase Government E-mail in 15 Days?
Many state government archivists publish record retention schedules for state agencies. Often these schedules (or statements related to them) address e-mail records. Many of the 50 official state schedules for e-mail retention are collected at this LINK. If you study all these schedules, you will hear many conflicting ideas.
Let's look at one schedule, picked at random – North Dakota’s General Records Retention Schedule dated 9/3/2008.
For e-mail, at 450102 North Dakota says, "Retain in office until the record status is determined, but no more than 15 days, then delete. If the e-mail message is an official record made or
received pursuant to law or in connection with the transaction of official business,
the retention period should be covered by an existing record series."
Whoa. That language might easily be interpreted to require really fast destruction as the default. That default would be subject to someone making a decision that an important e-mail is in fact important. If one were to interpret this Schedule to require quick deletion of most e-mail, that interpretation would seem hazardous under present trends in litigation. As I've argued elsewhere, the legal system is giving all enterprises, including state agencies, incentive to be generous in e-mail retention.
As the volume of e-mail, text and other e-messages soars, employees don't have time to "determine the record status" of all those messages. Further, the making of such determinations on a message-by-message basis can be a waste of government resources (employee time).
Electronic messages can have subtle and unexpected legal effects. Cloud Corp. v. Hasbro, 314 F.3d 289 (7th Cir. 2002), for instance, interpreted a bunch of informal business e-mails as modifying a formal, paper-written contract. The e-mails were interpreted as modifying the contract, even though the contract itself said it could be modified only by a “signed writing.”
Thus, many of the e-mails to and from important agency officials could affect contracts or other important matters, even though they are not formally labeled "contracts" or "employment decisions."
Let's turn back to North Dakota’s Retention Schedule. At 300101 it says, "This series contains contracts, leases, agreements, and competitive solicitations entered into by the department. Includes all back-up and closeout materials. RETENTION: Retain in office for the life of the contract plus six years . . ."
Scads of informal-looking e-mails might qualify as contract "back-up materials." The process of judging whether a particular communication does or does not constitute contract "back-up material" is not easy. Reasonable, well-educated people can have different points of view on that topic. Further, many casual-sounding e-mails might be both contract "back-up material" and relevant to other long-term legal matters like employment. Any given e-mail might fit into multiple categories, each with a different retention period.
In addition, some employees go on vacation or sick leave. Should their e-mail still be deleted in 15 days? One might read the literal words of the Retention Schedule as requiring 15-day deletion, but that reading defies common sense.
At bottom, North Dakota's Retention Schedule is filled with conflicts and causes practical dilemmas. How should it be interpreted?
If I were a records professional at a North Dakota agency, I would be loath to delete the e-mails of important people in 15 days. In view of the contradictory guidance in the state’s Retention Schedule, I might reasonably interpret the Schedule as calling for generous retention of e-mail belonging to important administrators. A responsible interpretation might call for a seven-year retention period – subject to special effort to cull (screen) out really important records that must be kept longer.
If concerned about unnecessary storage of personal communications in the e-mails, administrators could take their personal communication to their personal smart phones and keep it out of the agency's computer systems.
Mr. Wright teaches e-discovery and e-records policy law at the SANS Institute.
[Footnote: I've discussed North Dakota here, for no particular reason. I might have just as easily chosen any other state . . . California, Florida, Georgia, New York, Illinois, Pennsylvania, Missouri, Ohio, Virginia, Colorado, Oklahoma, Arizona, Utah, Nevada, Washington . . . who knows. In writing this post, I did not research North Dakota law beyond what I cited. I acknowledge that an expert in North Dakota administration law might point to other features of the state's law (cases, rulings and so on) that suggest different interpretations.]