Government's retention of email records
Q: It seems that municipalities and other government bodies say they only keep emails for a limited period of time and then they are automatically deleted. In one case, the former city manager's emails were deleted 30 days after his departure despite ongoing stories about contracts and dealings he was involved in. These bodies are using the lack of any legal standards to eliminate these records as quickly as they can, especially as the cost of maintaining them continues to go down. Do you know of any standards regarding how long government bodies should be required to keep email records?
A: This is an interesting situation. Public officials’ emails are public records and, therefore, subject to the state or, if it exists, local public records law for purposes of FOIA. Of course, a record can only be released through the public records law if it is still in the possession of a government body. Many state laws, either through the public records law or a law directly addressing this issue, discuss the retention and destruction of government records. In the absence of any legal standard, it should be presumed that the record is retained. In fact, many state laws that do contain a retention/destruction standard explicitly tell government officials to retain records until given specific authority by an outside body (usually the Secretary of State or Archivist) to destroy the record (that’s also because many state laws don’t actually allow for records to be destroyed by the agency in which they were originally created; the records must often be transferred to an independent agency who makes the final decision on when the records should be destroyed). Another thing to note, by the way, is that in the absence of a local law on the subject, state public records laws and/or retention laws, regulations or schedules generally apply at the local level, as well.
The laws and regulations themselves tend to be all over the place in terms of the actual retention time. But you do see a few generally recurring themes. Most of the retention schedules are set and overseen by the Secretary of State or the State Archives. Almost all – at least all I reviewed in preparing this response – tend to look at the content or function of the record, not the medium. In other words, email records aren’t treated differently from paper correspondence. However, it might be likely that more emails fall into a designation of something that is either not the public’s business (and don’t have to be retained at all) or “lesser value” or “more transient” category under which records can be deleted more quickly.
For example both New Jersey and North Carolina identify three categories of records. In North Carolina, one finds “Short Term Records,” which include communications received from professional listservs and broad announcements received by all employees. They can be deleted almost immediately. “Long Term Records” have significant value to the agency but do not need to be maintained permanently; here, the retention value is generally determined by assessing the record’s administrative, fiscal or legal value, according to a retention schedule. Finally, there are “Permanent Records,” which have lasting historical value because they document or constitute evidence of state policies, decisions, procedures and essential transactions. New Jersey says that records which “do not set policy, establish guidelines or procedures, certify a transaction or become a receipt” are considered “transient” and retained only until they no longer have administrative value. But there’s also a category of intermediate retention for things like general correspondence, which are kept for at least three years before being transferred to the State Archives or internal correspondence, which are retained until superseded, obsolete or replaced and then given to the State Archives. Finally, correspondence of heads of agencies can be designated for permanent retention if they include information concerning agency policies, program, fiscal and personnel matters.
That last point is also a recurring theme and one that would also seem particularly applicable here. Many states have specific rules that say that correspondence and email involving higher-level employees like Commissioners, agency heads, etc. have longer, if not permanent, retention periods.
I did a quick review of the Missouri law – and please take this with the qualification that I’m not giving legal advice you should rely on because I’m not familiar with Missouri law, so please consult a local attorney as well – and a portion of Chapter 109 deals with State and Local Records law. Section 109.220 establishes as “Records Management and Archives Service” within the Department of State. That Service is tasked with standards, procedures and techniques for effective management of records, as well as the standards for the preparation of retention schedules but apparently not establish the schedules themselves. That falls to the state and local agency heads, meaning it seems like Missouri is pretty de-centralized in this regard. So maybe Joplin has gone through such a process of setting the schedule. However, if it does not, then Section 109.260.1 says that “No record shall be destroyed or otherwise disposed of by any agency unless it is determined by the commission or board that the record has no further administrative, legal, fiscal, research or historical value.” Thus, only “Nonrecord” materials can be destroyed without some authorization and that’s anything falling outside this definition: “document, book, paper, photograph, map, sound recording or other material, regardless of physical form or characteristics, made or received pursuant to law or in connection with the transaction of official business.” Thus, I suppose the city manager can create a retention schedule, but the process is not entirely unilateral; that schedule would have to have been approved by the State Records Management and Archives Service, and the city manager has to follow the actual schedule.