Electronic Data Records Law | How to Win E-Discovery

Freedom of Information Act | Computer Records

Freedom of Information Act Requests Yield E-Troves of Documents

FOIA forces transparency in government, and transparency in turn forces revolution in the administration of public institutions – both national and local.

A FOIA requires government to disclose records to citizens upon request.  Remarkably, the quantity of available records relevant to any given request is skyrocketing as government agents adopt digital technology – databases, electronic mail, instant messaging, text messaging, Twitter, collaboration software and more – to execute the details of day-to-day government. The implications for democracy are profound.  So are the governance implications for enterprises of all descriptions.

Item One: Britain is in uproar over the expenses of Parliament members.  The row started when a journalist used the UK’s new FOIA to request records about M.P. requests for reimbursement of living expenses.  By age-old practice, the government covered M.P.s for the living costs associated with their official duties, but the specifics have always been hidden from public view.  Reluctantly resistantly the government prepared to turn over expense records under FOIA – though with heavy redacting to protect M.P. privacy.

But by this time loads of (un-redacted) M.P. expense records had been compiled into something that did not exist in the old days . . . a neat, convenient-to-steal electronic form.  This compact compilation of records enabled a whistleblower to spirit the records out of a government computer and into the hands of a newspaper.  The Daily Telegraph’s ensuing publication of complete, open details has embarrassed M.P.s in an historic scandal. British government will never be the same.  John F. Burns, “In Britain, Scandal Flows From Modest Request,” NY Times, May 20, 2009.

Item Two is Clark County School District, Nevada. Citizen Karen Gray requested under FOIA a year’s worth of the School Board’s e-mail, about 1500 messages.  A few years ago, records of such granularity did not even exist for a typical school board (or city/municipal commission, county management, state committee or board of trustees).  But e-mail has caused the creation of mounds of new records, which become fodder for any kind of legal investigation.

The District tried to delay disclosure.  It also tried to charge Ms. Gray $4000 for the costs of recovering the records (and filtering them for private/confidential data), but those costs reflect out-of-date, manual methods for compiling and reviewing e-mail records. The Nevada courts resisted the delay and the high charges.  The attitude of the courts was that the law favors inexpensive and generous disclosure. So the courts forced disclosure.

Ms. Gray’s case implies that Freedom of Information Act law is intolerant of governments that make their important e-mail records hard to recover.  A modern e-mail archive appliance makes the compilation and filtering of e-mail (especially that of executives, professionals, top managers, and board members) quick and inexpensive . . . consistent with the purpose of FOIA law.

–Benjamin Wright

Mr. Wright is an advisor to messagingarchitects.com, the visionaries in e-records management.

Electronic Mail Keep-Destruction Practice

Storage and Search Costs for Electronic Mail Archival

More Retention of Public Administrator E-mail?

Conventional records and information management (RIM) advice holds that each e-mail in an enterprise must be evaluated one-by-one.  Presumably, this evaluation must be performed by an employee because software isn’t up to the task.  If the employee deems the e-mail is a “record,” then (according to RIM) the employee should categorize it and place it in storage designated for that category.  If the employee does not deem it to be a “record,” it should soon be destroyed.

This advice is not working in practice.  A GAO study of senior federal government administrators found that many are not following the advice.  The nonconformists are just keeping all their e-mail – in good part because they believe that is the easiest way to avoid breaking law that requires the retention of records.  

But the nonconformist administrators are keeping the records in e-mail systems (like Groupwise or Microsoft Exchange) that are not designed for long-term storage.  

Conventional advice says these nonconformists either must work harder on sorting through their e-mail (spend more tedious hours in the office), or must hire someone to sort through it for them (incur higher labor costs).

The rationales behind conventional advice:

1. Storage is expensive, so we don’t want to keep more e-mail than necessary.
2. If you don’t put each e-mail into its category, you can’t find what you need when you need it.
3. If you store too many e-mails, it is too costly to search when you go looking for something.

 

Six Reasons Conventional Wisdom is Out of Date

I humbly argue the conventional advice is out of date – especially with respect to the e-mail of important people like executives and senior administrators.  I offer six reasons.

First:  The cost of digital storage is plummeting.  It will continue to drop. 

Second:  The number of e-mails is growing; therefore, the labor costs in evaluating e-mails one-by-one grows.

Third:  Search technologies enable easy retrieval of digital information.  Keyword and other forms of computerized search are very sophisticated and are improving rapidly.  They outperform the old-fashioned process of having people find things by peering into the categories in which they are stored.

Fourth:  When people make records decisions, they can make mistakes.  They can destroy records that someone else (a judge, an auditor, a prosecutor (district attorney), a whistleblower, an inspector general, a FOIA lawyer, a political opponent, an attorney general with a search warrant) thinks they should keep.  Or they can place a record in the wrong category.

Ask 10 lawyers about whether any given e-mail is or is not a “record,” and if so which retention category (or categories) it belongs in, and you can get 10 different opinions.

Fifth:  Employees don’t want the risk of making records mistakes.  Nevada police (state equivalent to FBI) conducted a criminal investigation of its former state treasurer for destroying e-mails that some of his staff believed should be retained.  The ex-treasurer defended himself saying he was just cleaning out insignificant stuff (what he called “clutter”).  In other words, his defense was that he had evaluated the records, deemed them to be “non-records,” and decided to destroy them in accordance with conventional RIM advice.  

The investigation did not conclude that the ex-treasurer had mismanaged records.  Prosecutors never charged him with improper destruction of records, although they did indict him for other alleged crimes.  
Here’s another way to describe the ex-treasurer’s story: a government administrator had to defend himself from allegations about his decisions to destroy “non-record” e-mail, and his defense prevailed.  His decision to destroy "non-records" was correct.  Yet, to defend himself, he had to hire a lawyer, at his own expense, and endure the peril of an invasive interrogation of his records management performance.

Which government administrator wants to defend her records decisions in a criminal (or any other kind of) investigation?  If presented with this risk, wouldn’t the administrator just prefer to keep all the records?

Sixth:  Although ordinary e-mail systems like Groupwise and Microsoft Exchange are not designed for long-term e-mail retention, other technology is designed for that purpose.  I call the technology an e-mail archive appliance.  It makes search and long-term storage of e-mail more practical and economical.

The availability of an archive appliance does not necessarily mean that an enterprise should retain all employee e-mail indefinitely.  But it does suggest very generous retention of e-mail belonging to important people like top administrators.

--Benjamin Wright

Technical footnote:  The conventional “RIM” advice as I portray it in this blog derives from lawyers and legal analysis.  Although you hear RIM used in the records manager profession, I am not talking about the records management profession per se.  When I argue against the application of RIM to e-mail, I am talking about the legal analysis – from lawyers and their publications – that has given rise to the conventional RIM understanding for e-mail.  My disagreement is not with the records management profession. 

Recorded Public Information

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.

–-Benjamin Wright

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.]

Health-care eDiscovery | Email Destroyed

Duty to Preserve Electronically Stored Information (ESI)
Standard for E-mail Litigation Hold

When a lawsuit is filed or reasonably anticipated, parties are expected to apply a litigation hold to ensure records are not destroyed (which includes ensuring emails are not erased).

In a class action case concerning rights to state-paid medical care (connected with Medicare), a federal trial court has criticized Tennessee state agencies (Defendants) for failing to preserve electronic records.  Said the court:

"Defendants left their employees to decide on their own what to retain without evidence of any written instruction or guidance from counsel on what is significant o[r] material information in this complex action.  Under the State's computer system, after six to seven months emails were destroyed.  Some key custodians did not have backup tapes for their work station computer.  Given the complexity of this action, isolated statements [from counsel to employees] about the litigation hold over a period of several years are equivalent to the lack of any meaningful litigation hold." John B. v. Goetz, 2007 WL 3012808 (M.D. Tennessee Oct. 10, 2007), Memorandum, page 126.

The court went on to criticize the inadequate litigation hold at Defendants' contractors.

The court’s statements open the possibility for e-discovery sanctions against Defendants.    

The case reminds how courts can scrutinize e-mail retention decisions years after the decisions are made.  It illuminates the danger when an enterprise leaves retention and destruction responsibility in the hands of individual employees (or contractors), who may not be fully aware of the legal implications of that responsibility.  Accordingly, I advocate generous, centralized retention of enterprise e-mail and text messages.  By "centralized," I mean the records are retained in an enterprise-controlled archive such that employees cannot destroy their individual records.

Here a federal court second-guessed Tennesee state agencies.  But in theory the state involved could just as easily have been Iowa, Oregon, Nevada, Texas, Idaho or any other.

–Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, leading provider of e-mail archival solutions for healthcare.  He also teaches e-data law at the SANS Institute.