State and Local Government Records Commissions April, 2001
Guidelines for Managing E-Mail
Electronic Mail (e-mail) has become an important communication tool for conducting government business in the State of Alabama. E-mail combines the instant contact of a telephone call with the capacity for the detail and permanence of a written message. Other files, from word processing documents to complex computer programs, can be attached to e-mail messages and sent with relative ease.
Because of the dynamic and often informal nature of e-mail, many questions have arisen over the official and legal status of e-mail messages. Among the most common questions are: Are e-mail messages "official" records and how do government officials deal with the legal implications of e-mail use? Do e-mail messages have the same legal standing as typed or hand-written communications? How should e-mail records be managed and/or preserved? How should public access inquiries about e-mail records be addressed? For government to manage its information properly, government officials need to develop policies and procedures to ensure that records created, sent, and received through e-mail are managed in accordance with the established legal requirements for creating, maintaining, and disposing of all government records.
I. E-mail Terminology
The very term "e-mail" is confusing because it is used synonymously to mean both the e-mail application and the messages distributed by the application. It can also be used to describe the action of sending or receiving an e-mail message.
In this leaflet, the term e-mail applications will be used to refer to the computer programs that generate, distribute, receive, and store electronic messages. E-mail applications vary in scope and size and may be found on: personal computers; local area networks (LANs); wide area networks (WANs); and Internet servers.
E-mail messages will be used to refer to electronically generated documents created, sent, and/or received by e-mail applications. This term includes the message, any and all attachments associated with the message, and the transactional information (metadata) about the message.
II. E-mail Messages as Public Records.
Alabama law stipulates that any document is a government record when it is created by a government employee using government resources in the course of conducting public business. The record continues as documentation of the activities and business of public officials (see Code of Alabama 1975, Section 41-13-1). Whether a message was created and sent electronically or hand-written and mailed makes no difference from the standpoint of the government's legal rights to and responsibility for a document.
III. Retention of E-mail Records.
As government records, e-mail messages are subject to the same retention requirements as the same type of record in another format or medium. The Code of Alabama 1975, Sections 41-13-21 & 41-13-23, prohibits a public official from destroying any public record without the approval of the State or Local Government Records Commissions. This requirement means that government e-mail messages must be retained and disposed of according to the records disposition authority (RDA) approved by the appropriate records commission for that agency. Retention periods for an e-mail record will vary according to the information the message contains and the function the message performs. E-mail messages must, according to Alabama law, be kept for the minimum retention period identified in the RDA approved for that agency. The content and purpose of the e-mail message determines its classification and how long it should be retained.
If an agency does not have an RDA, the agency should contact the Government Records Division of the Department of Archives and History at (334)242-4452 or at the following e-mail address: email@example.com .
E-mail messages may have one of three different retention classifications depending on the value of the records to the agency:
1. Transitory records are records of no meaningful value to an agency for documenting its work and may be destroyed as soon as they are no longer needed. Some examples of these types of messages are notes sent to a co-worker setting lunch-time; communications received from a professional listserv that are not used for project development or creation of policy; or, general announcements received by all employees such as news of an upcoming fire drill or an impending building repair. These records can be disposed of when they are no longer needed.
2. Temporary records have documentary value but do not need to be retained permanently. The retention period of these records is determined by their administrative, fiscal, or legal needs. This time period may range from a few months to several years and should be defined in the agency's RDA. These records must remain accessible for the entire retention period specified in the RDA. E-mail records in this category should be managed and maintained like the rest of the agency's temporary records. Public inquiries about the services of an agency or official submittals for licencing updates are an example of this type of e-mail record.
3. Permanent records are programmatic records of the agency that have historical value because they document the function and duties of the agency over time. A message from the head of an agency to the head of another agency detailing a shift in the way the two agencies work together may be an example of programmatic correspondence that should be retained permanently. For state agencies, these records may eventually be transferred to the Department of Archives and History. For local government agencies these records must be retained locally in a format that will allow them to be accessible permanently.
Due to the proliferation of personal computers and the ease with which e-mail messages can be created and destroyed, it is important that all government employees with access to e-mail be trained in using their agency's RDA to identify the types of records they create and receive and that they be made aware of the retention periods for these records. The creator of the record, i.e., the author of the message, is usually the person who makes the initial retention decision, but the recipient also has to make a retention decision based on the nature of the message within the scope of his or her responsibilities.
IV. Preservation of E-mail Records.
Government agencies have the responsibility for developing guidelines and procedures to manage e-mail messages as part of their overall record-keeping systems. All public officials have the responsibility under the Code of Alabama 1975, Section 36-12-2, to protect and guard their public records, including e-mail messages, from "mutilation, loss and destruction." Agency administrators should also develop policies and systems designs to ensure that e-mail records are appropriately preserved, secured, and accessible throughout their established retention periods.
There are two basic ways to preserve e-mail messages: on paper or electronically. Both methods have advantages and disadvantages that must be considered before determining which is right for the agency.
In some cases, especially for permanent records, the best preservation solution may be simply to print the e-mail messages onto paper and file it with other related paper documents. This solution makes sense if the agency does not already have an electronic system in place that is designed for long-term records protection and accessibility or if a majority of its records are kept in paper form.
The biggest advantage to the paper-based system is the stability of the medium. Agencies do not have to worry about hardware and software becoming outdated and the records becoming irretrievable. E-mail messages can be filed with other records of the same series directly, making the retention and disposition process easier. The disadvantage is that the e-mail messages lose their dynamic functionality as electronic documents. They cannot be indexed and retrieved as quickly and efficiently as in a well-managed electronic system.
There are several advantages to storing e-mail messages electronically. The messages can be retrieved more quickly and easily with electronic indexing, retaining their dynamic functionality. If the agency stores other records in electronic format, then the e-mail messages can be seamlessly integrated with other related project files.
Most e-mail applications, however, are not designed for long-term records storage. If e-mail records are to be preserved electronically, the agency program staff should work with the IT staff to plan the preservation program.
V. Other Management Considerations for E-mail Systems
Electronic systems share some of the properties of paper systems but have their own unique challenges. Below are some additional considerations to help agency officials on overall management of records.
Transactional information (metadata) is an important consideration in any information system for retention of e-mail and any legal use that maybe made of an email message. This metadata is the information about the e-mail message that accompanies the message for routing, tracking, and usage purposes. It can include the name of the sender and all recipients, information about the host application that generated the message, a record of all of the systems and computers the message was routed through, and the date the message was created and sent. In some e-mail applications, this metadata is a visible part of the message; in some applications it is in the header; and in some other applications, the metadata is stored in a "properties" file. Without this information much of the key legal documentation of a message's function may be lost.
An important e-mail consideration for offices originating messages is the use of distribution lists. These are groups of recipients that are referenced under a common name. For instance, if an employee is a member of a planning committee, then a list can be created that contains the e-mail addresses of all of the members of that committee. Rather than inputting all of the individual addresses, the person can just type the list name in the "To" line of the message, and the message will be sent to everyone on the list. If such lists are used, then the names and addresses of all the list members need to be retained along with the message. To know that a message was sent and not know the names of the recipients may impair the documentary function entailed in the retention of the message.
No matter what storage option the agency chooses, it is important to remember that the transactional metadata must be properly captured and stored with the e-mail message for the full value of the document to be preserved. This task is usually easy in e-mail applications that readily display this information. Applications that do not display the metadata need to be configured so that the data stays with the message in whatever form the message is retained.
Electronic storage systems should be backed up regularly to protect the files from system failures, unintentional deletions, or tampering. Note, however, that these routine back-up procedures are usually for emergency recovery purposes and do not constitute a long-term record keeping system for e-mail. Agencies should develop procedures to provide for the security of stored e-mail records so that the messages cannot be altered or deleted either intentionally or unintentionally.
E-mail records are subject to the same legal requirements regarding access as any of the agency's other government records. Although the Code of Alabama, 1975, Section 36-12-40, states "every citizen has a right to inspect and take a copy of any public writing of this state except as otherwise expressly provided by statute," the legal issues governing this access are frequently very complex and vary from one agency to another. Specific policies for each agency are likely to be the responsibility of the agency's legal counsel.
E-mail messages that are available for public inspection must remain accessible during their entire retention period and should be maintained in a manner which permits efficient and timely retrieval. Developing a standardized system of document naming and filing, and planning for indexing and retrieval points, will assist an agency in maintaining the accessibility of all e-mail messages throughout the required retention period. Having e-mail messages that are inaccessible, either through hardware/software obsolescence or because of faulty indexing schemes, can be just as problematic as the improper destruction of records. Note: If e-mail messages are stored in an electronic format, then the agency may be required to provide copies to the public in electronic format rather than printing out the messages. The agency's legal counsel should also be consulted on this issue.
For non-permanent records, steps should be taken to ensure that messages are fully and properly deleted when the retention period has expired. It is important to remember that simply deleting the message does not necessarily remove it from the hard drive or server. There are several utility programs that can be purchased to make sure hard drives are wiped clean and the messages are completely removed. This procedure can help eliminate wasted storage space.
Because e-mail message can be forwarded and routed to multiple addresses, copies of the messages could exist after the retention period has expired. Employees should be encouraged to delete unofficial copies of messages as soon as possible. At the same time, all agency staff should be trained in identifying what constitutes the official, or "record," copy. In most cases the author or creator and/or the principal recipient of the e-mail message are responsible for maintaining the record copies, but the retention of other copies is governed by the function the record plays in documenting the work of the recipient.
All agency employees should be trained in using the agency's RDA and how to identify and classify the records they create. They should be aware of proper retention and disposition procedures and of who to contact when records need to be transferred out of their custody. Because individual employees have direct control over the creation and distribution of e-mail messages, it is important that agencies provide training for their employees on agency e-mail procedures, including how to identify e-mail records and properly manage their own e-mail. Depending on the type of e-mail system an agency uses, policies and procedures will vary.
In addition to those mentioned previously, the following issues should be addressed in any e-mail policy:
This discussion covers only the most basic issues involved in a very complex subject. In preparing e-mail policies and procedures, agencies should involve the agency's information technology, records management, and legal counsel staff. For related information, see the ADAH publication "Legal Admissibility of Public Records." Additional guidance may be obtained by calling the Government Records Division at (334) 242-4452 or e-mail us at firstname.lastname@example.org.
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