Storing Too Many Messages on Tape?
Dallas County officials are debating a proposed policy under which the default will be to delete electronic mail quickly. But some question whether such a policy would lead to elimination of records needed for legal purposes (such as open records law) and to legal exposure for county employees.
The county is considering the 90-day policy because e-mail storage is expensive and cumbersome under its present technology. Proponents of the proposed policy argue that the county should archive only messages that an employee has deemed to be an official “record.” They maintain that Texas state guidelines mandate only the storage of official records, not all e-mail. Hence, they envision that employees will review each e-mail one-by-one to decide how it will be categorized for retention purposes, and if an employee does not designate it a record, then it would be deleted after 90 days. (Deletion would be suspended for e-mail subject to any special litigation hold).
Skeptics of the proposed policy fear employees (personnel) are not well-qualified to make such decisions. Although employees have historically made similar decisions with respect to paper records, the number of paper records was much smaller. Employees will need special training. [Query whether the costs and risks associated with employee time, training and attention exceed the cost of just keeping copious e-mail records.] What’s more, say the skeptics, an employee could be second-guessed for making a mistake and allowing an e-mail to be destroyed by the default policy rather than taking special effort to preserve it. According to the Dallas Morning News, “Destroying local government records is a Class A misdemeanor and can be a third-degree felony under some circumstances.”
Dallas County e-mail records (ESI) have previously been the subject of controversy in litigation.
An alternative for the county would be to implement an e-mail archival appliance that efficiently stores older records separate from the county’s day-to-day production e-mail system.
Mr. Wright teaches technology law at the SANS Institute (CLE and CPE).