Government records: it's the message, not the medium: governments--well, some anyway--are starting to figure out what records managers have known all along: Information pertaining to business is a record, whether it was created on or delivered to an office computer or a staff member's personal PDA.

Today, records can take almost any form--from written text on paper to an electronic text message. Courts have determined that what makes a record a record all depends on what's in the message itself, not on what media it was created or how it was delivered. A document containing government business is no less a record because it was communicated via e-mail rather than interoffice mail. And a record containing government business is still a public record whether it was created using a government official's private Hot-mail account or a government-owned Outlook account.

Many businesses have gotten the message--but governments are still awakening to the idea of properly managing e-mail. Recently, courts, the media, and the public have been dragging state, local, and even federal governments, into the 21st century--sometimes kicking and screaming--by mandating that electronic messages discussing government business communicated via computers, personal data assistants, and cell phones are, in fact, records that, in most cases, should be public.

While businesses already have become painfully aware of the fact that electronically stored information (ESI) is "discoverable" in court, governments and government officials seemingly are just beginning to realize that their communications, in whatever media, are also subject to prevailing local, state, and federal public records' laws.

Three recent high-profile examples reveal the extent to which governments are grappling with the fact that public records can indeed take electronic form, and e-mails addressing government business--even those composed using private accounts--must be properly managed and preserved.

Save Those Government E-mails

Missouri Gov. Matt Blunt and his administration are currently under investigation by the state attorney general for possibly destroying public records in the form of e-mails. The problem is the governor apparently does not consider e-mails--government or private--worthy of retention at all.

It began in September 2007, when a Springfield News-Leader columnist obtained a copy of an e-mail from Blunt's chief of staff, Ed Martin, to antiabortion groups discussing an attack on Attorney General lay Nixon, Blunt's probable opponent for governor in the 2008 general election.

According to The Kansas City Star, the columnist asked for copies of all of Martin's e-mails to determine how often he was using state resources for political purposes. Blunt's office, apparently unaware that the columnist already had one of the e-mails, said none existed. Blunt's staff later admitted to routinely deleting e-mail messages, despite a state records retention policy--signed by Blunt himself in 2001 when he was secretary of state--that requires such documentation to be retained for at least three years.

According to the St. Louis Post-Dispatch, however, Blunt suggested in mid-September that e-mails are not public records and do not have to be retained for three years like public records. "Nobody saves e-mails for three years," he told the newspaper.

Also in September, Blunt fired a staff attorney, Scott Eckersley. The Blunt administration said Eckersley was let go "for cause," but Eckersley contends that he was fired because he challenged Blunt's position on e-mall retention and warned the governor's staff that state law requires them to save e-mails. Blunt's staff said Eckersley never told them to retain e-mails.

Ironically, an e-mail memo dated September 14 surfaced in November that supports Eckersley's claims. In the memo, obtained by the Associated Press (AP), Eckersley wrote "e-mails can be 'public documents.'" The memo also noted that the records-retention policy Blunt had signed in 2001 said state agencies must retain records, including "all 'general communication'" for three years. Using all capital letters for emphasis, the memo also said e-mails are considered public under the Missouri Sunshine Law because the statute covers any document "written or ELECTRONICALLY STORED, retained by or of any public governmental body."

Missouri's Sunshine Law specifically defines a public record as "any record, whether written or electronically stored" that is retained by a public governmental body. Open government advocates say the broad definition of the law clearly includes e-mails; however, unlike laws in some states, the Missouri law does not specifically identify e-mails as public records.

The Star reported that when the memo was sent September 14, the governor and his staff were still maintaining that e-mails were not public records, even as they faced growing criticism for deleting e-mails that were sought through an open-records request from the Springfield News-Leader.

Fast-forward to November, and Blunt changed his tune a bit, admitting that some e-mails are, in fact, public, referring to those later incorporated into written documents that are archived, according to the Star. The governor also ordered the Office of Administration to create by the end of the year a plan for permanently archiving all messages to and from every Missouri state government e-mail account. While saving every government e-mail message is not exactly an ideal records retention policy, the fact that the governor, who previously did not appear to have--or even be concerned with having--a proper e-mail policy, is a step in the right direction.

The same day Blunt announced his change of heart, however, Nixon announced the appointment of a special team to investigate whether Blunt's office violated Missouri's Sunshine Law by deleting e-mails. It will probe the Blunt administration's records retention policy and whether it ordered the deletion of computer backup tapes that contained e-mails. A statement from Nixon's office said the investigation would be completed by January 15, unless an extension becomes necessary.

When Private E-mails Are Public

It would seem Missouri's governor isn't the only one confused about whether electronic records can be public records. In November, a Texas District Court Judge ordered the city of Dallas to turn over e-mails requested almost two years prior by The Dallas Morning News, including messages from city officials' personal e-mail accounts and handheld electronic devices because they contained city business.

In late 2005, two reporters submitted separate Texas Public Information Act requests for access to e-mails from several Dallas officials, including the city manager, former mayor, and housing director, after an FBI investigation into possible corruption at city hall.

The city provided several boxes of documents in response to the requests, but reporters found gaps between the communications, indicating that city officials had withheld some records. Some of the documents that were provided, according to court records, had been redacted, and should not have been, The Dallas Morning News argued.

The News filed the lawsuit in July 2006 after exhausting other efforts to obtain the information, said David Starr, vice president and deputy general counsel of Belo Corp., the newspaper's parent company.

"This case is very significant," he said. "It's the first Texas court decision addressing whether e-mails relating to city business that are sent or received on a personal e-mail account are subject to disclosure under the Texas Public Information Act."

The court addressed the issue by ruling that it's the message, not the medium, that counts when determining which records are public. According to the court's decision, government business, no matter where or how transacted, is subject to public records laws. E-mails sent or received on personal computers should not be treated differently than e-mails sent or received on city computers, if they deal with city business.

The city can appeal the decision; however, under Texas law, government correspondence, including e-mail, is public unless it is protected under an exemption in the act, such as one that protects legal communication between attorneys and clients, according to the News.

In fact, prior to the court's ruling, Dallas City Attorney Tom Perkins sought rulings from the Texas attorney general's office on both News requests because he wanted to withhold several categories of e-mail, including correspondence involving the city attorney, which he deemed exempt under the law's attorney-client privilege exemption. (Per Texas law, a government agency wishing to withhold information must ask the attorney general and explain the need for withholding the information.) The News reported that Perkins also asked to withhold information that was part of the FBI investigation.

In February and March 2006, the attorney general's office ruled that the city of Dallas could withhold some information protected by attorney-client privilege or that was part of the ongoing FBI investigation but that it must release all other e-mails requested by the News, which had paid a $3,500 deposit for the records.

Yet, even after the attorney general's decision, the News said it still did not receive all the documents it requested, and in July 2006 filed the lawsuit.

According to court records, the city maintained that it had released all public documents to the newspaper and contended that messages sent via one official's personal data assistant (PDA) and her personal e-mail account were not public because the city did not own the PDA and could not access the information on it.

The News argued that because the official used her PDA and personal e-mail for government business, those messages should be public. The court agreed in November, deciding that the content of the message is what counts, not the delivery platform. In the court's estimation, if the content of the message is about governing or government business, then it should indeed be public.

White House E-mail Problems

E-mails, it seems, aren't respected any better at the federal level. In response to two lawsuits that accuse the White House of destroying e-mails between March 2003 and October 2005, a federal judge in November ordered the Bush administration to preserve all copies of its e-mails, according to a CNN.com report.

U.S. District Judge Henry Kennedy ordered the executive office of the president to safeguard the material by not destroying any backup computer tapes of its e-mail, in response to the lawsuits that seek to determine whether the administration violated federal law by deleting e-mails.

The White House had said the order was unnecessary, as it had been taking steps to preserve copies of all e-mails and would continue to do so. But Kennedy was not convinced and issued the formal order to maintain backup tapes containing White House e-mails--an order that carries contempt charges for any violation. The administration also asked that the lawsuits, brought by Citizens for Responsibility and Ethics in Washington (CREW) and George Washington University's National Security Archive (NSA), be dismissed.

The groups' lawsuits say five million White House e-mails are missing and ask the administration to explain what happened to them. According to FCW.com, CREW's lawsuit states that the Bush administration violated the Presidential Records Act (PRA) by not preserving millions of e-mail messages since October 2003. The lawsuit requests that the administration establish "an effective electronic records management system that ensures against the loss or destruction of government e-mail records."

Both lawsuits contend that official records have been lost because the administration has failed to replace its old electronic records management system. FCW.com reported that the White House stopped using the Clinton-era Automated Records Management System in 2002 and switched from Lotus Notes to Microsoft Outlook.

So far, the administration has not explained what happened, what backups they have, or what they're doing to improve the situation. When Congress inquired about the five million missing e-mails, a White House lawyer suggested an outside IT contractor was responsible. But media reports have not found that any such IT contractor ever existed.

If the messages were deleted, government experts say it is a dear violation of the PRA. The Federal Records Act prohibits destroying government records, including electronic ones, unless the action is first approved by the archivist of the United States.

In 2006, special counsel Patrick Fitzgerald revealed that relevant e-mails regarding the Valerie Plame case could be missing because of an archiving problem at the White House. The White House has said only that some e-mails may not have been automatically archived on a computer server for the executive office of the president and that they may have been saved on backup tapes.

An NSA lawyer said Kennedy's order will "stop any future destruction of e-mails, but the White House stopped archiving its e-mail in 2003 and we don't know if some backup tapes for those e-mails were already taped over before we went to court."

In another, previous electronic records gaffe--and another violation of the PRA--Bush administration staff reportedly bypassed an internal e-mail system, instead using private accounts provided by the Republican National Committee. Those thousands of e-mails, which media reports say included government business, are still missing after having been "accidentally" deleted.

While particularly attention-grabbing at such a high level, similar e-mail scandals are becoming only more frequent nationwide. Unfortunately, too many governments have yet to address or even realize the issue and the potential for trouble that not properly retaining government-business-related electronic records can cause. The issues--that yes, electronic messages can be public records and that even private individuals' private electronic messages can be public records--will only become more critical as technology continues to evolve, so the sooner governments address them, the better.

Addressing the E-mail Issue

State and local government officials in Ohio can no longer bypass public records laws by using private e-mail accounts to conduct official government business.

The Privacy/Public Records Access Study Committee, a 22-member committee created by the Ohio legislature to examine public records issues, released its recommendations in October. In them, according to The Columbus Dispatch, the panel stated that electronic communication "in the course of public business should be treated consistently under existing public records laws and court decisions."

"... [T]he general idea is if you're doing public work, it's a public record no matter what device you use," Sen. David Goodman, committee co-chairman, told the Dispatch.

Before the committee's recommendations, e-mail policies and procedures varied widely across the state government in Ohio. According to an investigation by the Dispatch, some government leaders and their staff members turned over very few e-mails when requested because most of their messages were sent via wireless devices or home computers on private e-mail accounts, where they were often deleted.

However, the committee's recommendations, along with the enactment of a new statewide public records law, have spurred all state offices to implement policies addressing electronic communications. The Ohio attorney general's office policy, for example, now requires staff to copy e-mails relating to public business from their private accounts to their government e-mail accounts and retain them in accordance with applicable records retention schedules, the Dispatch reported.

The Ohio House and Senate took action in October 2007, approving records retention policies that discourage members from using private e-mail accounts to conduct official business. The policies also require e-mails discussing official business to be kept according to each chamber's retention schedule, regardless of what e-mail account is used.

References

"Good Choice of Investigators for Blunts Records Policy." The Kansas City Star, 16 November 2007. Available at www.kansascity.com/340/storf1363044.html.

"Groups Press White House on E-mail" FCW.com, 15 October 2007. Available at www.fcw.com/online/news/150516-1.html .

Hoover, Tim and Kit Wagar. "Team to Investigate Blunt E-mail Policy" The Kansas City Star, 16 November 2007.

LaFleur, Jennifer. "Ruling: Dallas Officials' E-mails Must Be Turned Over" The Dallas Morning News, 2 November 2007. Available at www.dallasnews.com/sharedcontent/dws/news/localnews/stories/ 102907dnmetemails.317323a.html#.

Leonard, Christopher. "Memo Backs Blunt's Ex-Aide" The Kansas City Star, 10 November 2007. Available at www.kansassity.com/115/story/354749.html.

"Panel: Official E-mails Public." The Columbus Dispatch, 26 October 2007. Available at www.columbusdispatch.com/live/content/local_news/stories/2007/10/26/ RecordsReport.ART_ART_10-26-07_B1_SF89KUS.html?sid=101.

"The White House Has an Email Problem" The Carpet Bagger Report, 13 November 2007. Available at www.thecarpetbaggerreport.com/archives/13583.html.

"White House Ordered to Preserve All E-mail." CNN.com, 12 November 2007. Available at www.cnn.com/2007/POLITICS/11/12/white.house.email.ap/ index.html.

Nikki Swartz is a freelance writer based in Kansas City, Missouri. She may be contacted at nikkiswartz@hotmail.com.