Government should not be able to delete emails…
There was a time before the advent of the computer where paper documents were kept in relation to activity by our governments and this was kept as a part of the public record. As email began to grow in popularity, I also think that some have forgotten that depending on what it referenced and where it was written, it should be maintained to be a part of the public record as well.
I’m not talking about personal emails sent on personal computers using personal email accounts. I believe elected and appointed officials as well as governmental employees have a right to privacy when it is on their own computers/cell phones and is not sent via an official email address/server.
I can’t say I agree the Blade’s mission when it comes to the Seneca Court House, but I do agree with some of what they were seeking in court that is covered in State’s high court orders Seneca County commissioners to make effort to recover deleted e-mails.
For more information I recommend reading the Summary provided by the Ohio Supreme Court, which also includes a link to the full pdf of the decision. Part of the summary:
Writing for the Court in today’s decision, Justice Pfeifer pointed out that, as part of the statutory scheme establishing the public’s right to examine state and local government records, the General Assembly enacted R.C. 149.351, which prohibits any public office from the “destruction, mutilation, removal, disposal of or damage to” public records except as authorized by a duly adopted policy for records retention and disposal consistent with the state Public Records Act. Under Seneca County’s official records retention policy, he noted, “e-mail that has a significant administrative, fiscal, legal, or historic value must be retained, and e-mail that has no significant value can be erased. According to the board’s clerk, the individual computer user makes the determination when the e-mail can be deleted.”
This is a growing area of law in the civil world. Retention, collection and protection of Electronically Stored Information (”ESI”
are big issues as it relates to discovery in civil suits.
Many of these issues also apply to FOI requests and how our elected officials and employees gain, use, and store information.
Its a bit of a double edged sword. In the computer world, some things last forever, but if expectations mirror that, the storage of information for all time can be burdensome and expensive. And with multiple users each determining what might have “significant” value, almost impossible to control.
Sanctions have been dolled out however, after the fact, when employees don’t keep something later determined to be significant.
TAHL
December 9th, 2008 at 5:21 pmI have a feeling that we are not at the point where it is either burdensome or expensive to store electronic records in perpetuity. Does anyone know what the total volume of incoming and outgoing e-mail is annually for city government?
-TB
December 9th, 2008 at 6:14 pmNo, not really.
How is Ally ?
December 9th, 2008 at 8:57 pmShe’s doing pretty well as far as I know. I had some things come up mid-semester and haven’t talked with her much since summer. Hopefully we’ll get caught up over the winter holiday.
-TB
December 9th, 2008 at 10:35 pmYou titled this article, “Government should not be able to delete emails,” yet you stand for the position that private people should. If a government employee creates an email for personal reasons on her government email account, should that be disclosed? Furthermore, if a government employee engages in governmental business via private email, should that be disclosed? Where do you draw the line? What is the definition of public and private, and more importantly, who is obligated to tell the difference between private emails on public accounts, and public emails on private accounts? I think this is a very new, and interesting point of law.
December 10th, 2008 at 1:56 amI’d recommend re-reading what I wrote – I made a clear delineation when it came to personal private emails not using a governmental email or a governmental computer. If you write a personal email on a governmental email account, it would create gray areas, easiest way to avoid them is to not do it.
There should be clear standards, it’s apparent there are not which is something that does need to be addressed given the increase of electronic communication.
December 10th, 2008 at 2:31 amLisa, what if half of the emails are asking a fellow employeee where they want to go for lunch?
December 10th, 2008 at 7:51 amThe Ohio AG releases an annual guide to Sunshine Law (online at http://www.ag.state.oh.us/legal/pubs/Ohio_Sunshine_Laws_2008.pdf). From the section discussing definition of a Record:
[excerpt]
A “record” is any item that is kept by a public office that: (1) is stored on a fixed medium, (2) created, received, or sent under the jurisdiction of a public office and (3) documents the organization, functions, policies, decisions, procedures, operations, or other activities of the office. Note that in certain instances, the Ohio Supreme Court has concluded that items in a public office which do not “expose government activity to public scrutiny” and do not “shed any light on any government activity” are not “records.”
[/excerpt]
I think the main issue is with who determines whether the e-mails meet those three criteria. Allowing public servants to decide which of their own e-mails should be public record presents a fairly obvious conflict of interest. Self-policing tends to go against the principal behind separation of powers. Given the complexities of that and the relatively cheap cost of data storage, it might be best to archive everything. If there are disputes later about what is public and what is not, we have existing court processes to figure that out.
Also, at least in most jobs I have had, personal use of employer assets is frowned upon. I don’t see why government e-mail accounts should be any different.
December 10th, 2008 at 10:15 amTerry Biel wrote:
I don’t remember the details off the top of my head, but as part of the records-retention committee in Sylvania Township (actually, I think that was last year when I was President of the board), there are guidelines on how long different types of records need to be kept and when they can be destroyed (after proper public notice). The state law is tied in to our records retention policy. I would think all government agencies have such a policy.
Somethings do have to be kept forever, but not everything. How long do emails have to be kept? I don’t know. But I think all governments work to keep what records they have to have archived to the prescribed level otherwise we would be drowning in paperwork and trying to organize it.
But back to the issue, I think it is interesting in that in my case and the case of anyone at the township, just because it is deleted off my computer doesn’t mean it is off the server (I might not need it anymore, but it is a public record). And yet Seneca County says its deleted completely? I don’t have access to the server to a full delete. Who at Seneca County does and who told that person to do a full delete?
December 10th, 2008 at 10:35 amThis is really a Blade story about their problems with trying to control Seneca County and beat down little county commissioners there, since they’ve taken control of Toledo and Lucas County and need another county to run. I’m sure lawyers are having a lot of fun with it, though. It’s another way for them to get billable hours. BTW, is this issue increasing Blade circulation out there in Seneca County? Maybe that is one reason why the Blade is continuing to push the issue. It could be a case, for them, for following the money. Personally, I don’t care what goes on in Seneca County.
December 10th, 2008 at 11:59 amI know at the Fortune 500 company I work at, no e-mail exsists that is over 2 years old. Even on tape… that’s just policy.
December 10th, 2008 at 1:20 pm