Getting Serious About Protecting Access to Public Email

29 October 2014

By Emily Shaw

The author is National Policy Manager at the Sunlight Foundation and oversees its state and local policy work. This article was published Oct. 21 on the Sunlight blog.

Our legally-protected access to public email records — the most voluminous source of official written records — is failing.

Despite the fact that data storage costs have continued to decrease over time, evidence exists that state and local governments are increasingly implementing policies which reduce their obligations to keep emails as public records. Some of the more visible recent examples of this include Democratic New York Gov. Andrew Cuomo’s administration’s recently-revealed determination that all state employee emails which were not specifically saved would be deleted after 90 days; a binding decision from a California Court of Appeals that public officials’ emails, if written on private devices, do not constitute public records; and the Los Angeles Unified School District moving to increase the rigor of their email destruction policy only after older emails revealed the closeness of officials’ relationships with potential district vendors. Some states, meanwhile, still have yet to declare an official policy designating emails as public records. There is no guaranteed right to access records of public business conducted over email in those states.

The fact that state and local email retention policies are typically developed in-house and without much fanfare has led people — most often journalists — to discover only after the fact that these records are not being kept. Email retention policies in cities routinely allow destruction of email records after 90 days. With email becoming the primary form of written governmental communication, this erosion of access to our collective public records is an unacceptable and avoidable course of events.

Luckily, while many state and local governments struggle to articulate or successfully implement clear policies to reliably retain important electronic public records, the federal government is moving toward a better standard. The National Archive and Records Administration (NARA) has provided some useful guidance in response to the problem of how to move public records archiving into the 21st Century.

Both in the federal government and in state and local governments across the nation, the most common method presently used to archive electronic records allows public employees to decide which individual emails they would identify as “public records.” Other observers of government IT have noted that this approach to email retention practically works against the robust protection of public records:

A major obstacle to the adoption of the ‘user driven’ email records approach, no matter how well-integrated the solution, has been the cultural hurdle for users at any level to … independently decide that an email qualifies as a record, and to then perform the extra work to properly classify an email record against the agency’s records schedule.

While public employees appear generally to receive guiding criteria for which emails constitute public records, it is unclear how effective those guidelines are, particularly across smaller jurisdictions.

Similarly, we’ve yet to see evidence that individual deletion practices are regularly audited. This approach is time consuming and, without adequate oversight, introduces substantial subjectivity (and potentially self-serving behavior) into the question of what constitutes a “public record.”

Current email archiving practices are hampered by other inefficiencies as well. In some cases, public employees who identify their emails as public records are then mandated to print them out for subsequent paper filing. When printing every maintained email is required, the government misses out on the public cost-saving benefits of email as an electronic record.

In response to the problem of how to effectively mandate the maintenance of important public records transmitted by email, NARA has moved ahead by recommending federal agencies adopt a “Capstone” approach to email archiving. Under the Capstone model, agencies identify a set of employees whose email inboxes are likely to contain records relating to the agency’s most significant decision-making. These people include both agency heads and their immediate deputies, as well as the heads of individual programs. Then, all of these employees’ messages are automatically archived and kept as permanent records. If employees want to cull individual emails as being personal messages, spam or otherwise transitory and truly unimportant material, they may do so — but the presumption lies with preserving, rather than deleting, the bulk of these individuals’ emails.

NARA is now following up on their initial Capstone approach by proposing additional guidelines to require all public employees to keep all emails for three to seven years. With this advance, the agency realigns the highly discretionary federal policy on email to fit our true understanding of email’s importance as a public record.

Rather than viewing email as a discretionary, temporary communication, the new NARA guidelines respect email’s central role in enacting public policies. Like the paper letters and memos of the 20th Century, email is frequently now the very substance of public policy implementation.

NARA’s new email retention policy reflects a 21st Century understanding that public records do not become less vital when they exist in digital, as opposed to paper, form. The approach of keeping all public emails for a minimum of three to seven years offers critical support to the public’s right to access government records. We feel that this is an appropriate aspiration for all governmental units in the U.S.: federal, state and local.

While we understand that email and archiving systems will have to adjust to this new approach, it seems likely that the future will bring more, not less, use of digital technology for governmental communication. Without a strong commitment to keeping these electronic records public, we will have many fewer records to access in the future.

If we do not wish to see our rights to public records entirely erode, now is the time to get serious about protecting public access to official public email.

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