October 17, 2007
Don't delete that email!

Elise Hu writes about Texas' email retention policy and how it relates to open record laws. She cites a controversy in Missouri as an example of what can happen.

Gov. Matt Blunt acknowledged Tuesday that "e-mails often are a public record" while also defending his staff's routine purging of many of its e-mails from the state computer systems.

At a news conference in midtown, the governor said his office had no written policy stipulating which electronic communications should be saved, and which ones could be deleted. State law specifically lays out what records the governor's office needs to keep and for how long.

Blunt referred questions about any e-mail preservation to his staff, which refused to comment on the matter.

Blunt's comments were in response to the controversy stirred by his aides' statements last week that e-mail generally is not kept "for very long, if at all."

Critics, including Attorney General Jay Nixon, say that approach violates at least two state laws: the state's record-preservation law and the Sunshine Law. The latter lays out public access to government records and meetings.

At a separate news conference Tuesday in northern St. Louis, Nixon asserted that actions of the governor's staff appeared to be "an anathema to openness in government."

"This is public business, these are public records, this is what we do," declared Nixon, a Democrat who is challenging Blunt for governor in 2008.

Blunt, in explaining his staff's intentions, said with a chuckle, "I think people are trying to have a clear and manageable in-box. That's what they're trying to do."

Governor Blunt is either being evasive, or he's ignorant of how email works. It doesn't matter if you delete every email immediately after reading it. There will be a backup of it somewhere. The question is how long the backup tapes are retained.

Overall, Blunt offered conflicting views of how e-mails should be treated under the state's Sunshine Law. He said the law is directed more at agencies and institutions, than at individuals.

In the case of e-mails, he said, "Once requested (under the Sunshine Law), and if they exist, they're definitely a public record."

Some took his statement as implying that e-mails are not a public record if they're purged before they're requested.

Later Tuesday, the governor's office e-mailed a statement that said, "There is no statute or case that requires the state to retain all e-mails as a public record. E-mails can be a public record if they meet the other criteria of a public record."


In general, the preservation requirements mandate that all state communications or memos dealing with management, policy or financial matters need to be preserved for three years, or 90 days after the release of a state audit on that office. The law defines communications broadly, including those on paper or electronic.

Nixon noted Tuesday that most other statewide officials appear to share his views regarding e-mails. A Post-Dispatch survey of other statewide offices found that most say they have detailed policies governing which e-mails are to be preserved, and which can be purged.

Those offices include Republican state Treasurer Sarah Steelman, and two Democrats, Secretary of State Robin Carnahan and state Auditor Susan Montee.

All said they also have systems in place for long-term storage of e-mails, either electronically or on paper.

Montee said in an interview that her office must retain all e-mails pertaining to audits for at least 11 years. Steelman's staff said they had a special information technology section to preserve records for the office, including e-mails.

Nixon clearly has the better grasp of the issue. This is a routine matter in the corporate world, where email retention policies often mandate a short lifespan for server backup tapes, to make it harder to do discovery in a lawsuit against the company. Governments, which are not supposed to have the secrecy and confidentiality that businesses require, can and should maintain backup tapes longer than businesses do.

Somehow, I'm not terribly surprised to see that Governor Perry's office is parroting the same meaningless line as Governor Blunt's:

"Our emails get automatically deleted every 7 days," said Governor Perry's spokesman Robert Black. "We kept the same policy and schedule as Governor Bush."

Black made a nearly identical statement during the initial phase of the TYC scandal, when questions about what Perry knew and when he knew it surfaced. It's still not clear to me if he's talking about tape retention policy or just employees hitting the Delete key in Outlook. As we know, the distinction is critical.

This isn't illegal. I've learned from conversations with various attorneys that Texas doesn't have a records preservation law that speaks to this specifically -- and the TPIA doesn't forbid the purging of emails. Emails are considered a public record; but only if requested before they're deleted into the cyber-abyss.

So this opens up questions about whether emails ought to be kept -- not just for the sunshine reason, but for historical purposes. (I mean, those LBJ phone calls are interesting!) Is it good policy to routinely delete official communication in public offices, when email is the way most of us communicate?

I put the question to State Senator Jeff Wentworth, R-San Antonio, this afternoon. He's the Chairman of the Senate Jurisprudence committee, which oversees public information legislation.

"This is case of first impression with me, but it sounds like something that we oughta have hearings about, what the practice is government-wide... Arguments for keeping the emails for a certain period of time and arguments against it, for whatever reason," Wentworth said.

I'm actually a little surprised that we don't have a statewide standard. If that's true, then yes, we ought to, and I hope Sen. Wentworth follows up on that. Hu says she's poking around other agencies to see what policies they've adopted. I'll be interested to see what she finds out.

Posted by Charles Kuffner on October 17, 2007 to Show Business for Ugly People

YES! Judge Stands Firm: White House Emails Fair Game

Judge rejects White House e-mail argument
Bush administration may be ordered to preserve copies of e-mails

Justice Department lawyers offered to have the government file a sworn declaration stating that the White House Office of Administration is safeguarding all backup materials.

"Unlike a court order, a declaration is not punishable by contempt," the magistrate wrote. "In other words, without such an order, destruction of the backup media would be without consequences."

Whether to issue the order is up to U.S. District Judge Henry Kennedy. The Bush administration has 10 days to say why Kennedy should not order preservation of electronic communications by White House officials and aides. Kennedy had referred the issue to the magistrate for a recommendation.

Facciola's report to the judge stems from a controversy dating back nearly two years over missing White House e-mails. An ethics advocacy group says the White House has deleted millions of e-mails and the private organization is suing the Executive Office of the President in an attempt to force the government to reconstruct any lost messages from backup tapes.



19 Oct 2007 // Today, in CREW v. EOP, Magistrate Judge John Facciola, issued a report and recommendation in which he concluded that a temporary restraining order should be issued by District Court Judge Henry Kennedy preventing the White House from destroying any back-up copies - in whatever medium

Posted by: Support Science and Al Gore to Reverse Global Warming on October 21, 2007 11:05 PM