Remember the story of the Harris County Sheriff's Department sudden (and curiously-timed) implementation of a policy to purge all emails older than 14 days from their system? See here, here, here, and here for background. There's now been a hearing on the temporary injunction that KTRK-13 had won to prevent any further destruction of email.
The Sheriff's Office stopped deleting e-mails on Jan. 19 and argued they aren't really gone because they still exist on backup tape. And once that happens, the Harris County Attorney's Office says, they are no longer subject to the Public Information Act.
"When moved to backup tape, they're no longer public information," said Frank Sanders, the assistant Harris County attorney representing the Sheriff's Office.
At a contempt hearing on Friday, Sanders cited prior letter rulings by the Texas attorney general as the rationale behind his client's assertion that e-mails on backup tape are not public record.
Sanders also said the Sheriff's Office's decision to have all e-mails more than 14 days old deleted from employees' inboxes was a storage issue and had nothing to do with the station's interview two days before about questions involving how much Sheriff Tommy Thomas paid a jail contractor to redesign the sheriff's weekend home. That interview aired Jan. 10.
"The decision (to delete) was just to free up storage space," Sanders said.
The station's attorney argued that the letter rulings cannot be applied in a blanket manner to all cases involving backup tape. He also argued that the Sheriff's Office is circumventing not only the Public Information Act, but also local municipal policy that requires public employees' e-mails to be retained for up to two years.
The argument that email which is no longer on the server but which remains on backup tape is no longer public information is so ridiculous to me that I almost don't know how to respond to it. I'd be interested in reading those AG opinions, and I'm going to guess they're tailored to much narrower situations, because such a broad reading leads to this ludicrous conclusion. Among other things, it would incentivize a government agency with something to hide to implement a policy very much like that of the HCSO. There's no possible way this can be good public policy. From an IT perspective, it's all still data. Stuff on backup tape is harder to get to, especially if we're talking Exchange email, but there's nothing fundamentally different about it. And finally, I can say from professional experience that corporate email on backup tape is most certainly subject to discovery in civil actions. There's just no justification for this that I can see.
Thankfully, the judge seems to see it this way as well:
State District Judge David Bernal declined to find the Sheriff's Office in contempt, but said he did not find the department's arguments "meritorious" as to why the e-mails were not of public record.
Bernal ordered both sides to submit written briefs by Friday explaining the backup tape issue.