December 2013

 Retention and Disposal of Electronic Communications

The digital age brings many valuable developments, including e-mail, electronic transmission of records, instant messaging, and mobile communication devices.  Along with these modern efficiencies come new retention and access issues, and in many cases an ability to destroy records simply by touching a screen.  Government’s responsibility to retain records with business value and provide access in accordance with law requires that it must be cognizant of and keep up with technology.

The expansive scope of FOIL is established through the statute’s broad definition of “record”, which encompasses

“...any information kept, held, filed, produced, reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.”

Based upon the language emphasized above, communications need not be on paper or in the physical possession of a government agency to constitute agency records; so long as they are produced, kept or filed for an agency and exist in some physical form, the law specifies and the courts have held that they constitute “agency records”, even if they are maintained apart from an agency’s premises.  Business related emails, therefore, whether they are sent via a private email account or an agency email account, are “records”, the contents of which would determine rights of access under FOIL. 

At the federal level, there have been numerous government officials who admit the use of multiple email accounts for government business, with one former official even going so far as to use an alias for emails “to sidestep disclosure rules” (http://bigstory.ap.org/article/emails-top-obama-appointees-remain-mystery).  Trust that all government records are properly maintained and considered when responding to FOIL requests may wane in light of evidence that government officials and employees, like many others, blend communications among various accounts.

While outgoing mayors and governors have sometimes been challenged for failing to preserve records of their offices (http://www.nydailynews.com/archives/news/council-panel-eyes-rudy-papers-plan-article-1.479319; http://blog.timesunion.com/capitol/archives/138061/cuomo-sets-policy-for-keeping-records/), the transition from paper to electronic records makes it easier and simpler, some speculate, to avoid disclosure and records retention requirements.  Former Albany Mayor Erastus Corning’s records were preserved by his successor in three hundred boxes of paper records, which included correspondence related to his personal affairs and those generated in his capacity as political party chairman.  A request for the records resulted in a decision from our highest court, in which the court held that “personal or unofficial documents which are intermingled with official government files and are being ‘kept’ or ‘held’ by a governmental entity are ‘records’ maintained by an ‘agency under Public Officers Law §86(3), (4).  Such records are, therefore, subject to disclosure under FOIL absent a specific statutory exemption.” Capital Newspapers v. Whalen 69 NY2d 246, 513 NYS2d 367 (1987).  The Court’s support for a broad interpretation of the definition of “record” subject to FOIL, and the expansive definition of that term, are the bases for our advice that communications involving one’s governmental functions generated via public email accounts (however many) are subject to disclosure under FOIL, and accessible, in whole or in part, depending on content.

Records management, then, is fundamental to records access.  Without consistent records retention practices in place, the volume of paper and electronic records become unwieldy and overwhelming.

We are interested to learn how the courts will determine access issues regarding former Attorney General Eliot Sptizer, who may have conducted public business via a private email account. See Smith v New York State Office of the Attorney General. While the definition of “record” in the Freedom of Information Law clearly includes those government business emails sent from a private email account, how would government gain access to such emails, if they exist, when an employee separates from service? 

We note reports of the failure of the outgoing New York City Mayor to have in place a method for retaining many of the electronic communications generated during the course of his three terms in office (http://www.dnainfo.com/new-york/20130917/new-york-city/with-3-months-left-bloomberg-admin-has-no-plan-save-many-city-emails).  Three versions of a plan to maintain all communications for only certain agencies were apparently the only choices under consideration.  With little or perhaps no attention paid to records management on a regular basis, questions and costs loom large.

It is unlikely that records management environments have been established and/or enforced for electronic messaging via state owned communication devices, which can hamper trust in government’s ability to operate transparently.  While most electronic instant communications have little or no business value, without retention practices in place, again, the public has no way of checking or finding those that may be valuable.

It is somewhat surprising, but nevertheless accurate, that there are still government agencies at the state and local level in New York that refuse to receive requests for access to records via email in accordance with law, despite a clear ability to do so.  Both the New York City and New York State police agencies, for example, continue to refuse to accept FOIL requests via email.  The NYPD in particular is repeatedly criticized for its “overeager rejection stamp and a convenient tendency to ‘not receive’ letters on time” (http://motherboard.vice.com/blog/the-nypd-is-foia-proof).  Email documentation would, in our opinion, alleviate debate over document received dates.

Properly documenting communication accounts and business records and fashioning mandatory retention practices applicable to electronic mobile communications, or not permitting the use of such methods of communications until such environments are established, as recently recommended for federal records by the Canada Information Commissioner (http://www.oic-ci.gc.ca/eng/pin-to-pin-nip-a-nip.aspx), are basic to operation of a freedom of information law.  Without rules or policies that specifically address electronic messaging systems, information and perhaps a window on decision-making and history may be lost forever.