Open-records advocates wary of e-mail deletions

JEFFERSON CITY, Mo. -- An e-mail pops into your inbox. You scan over it. Now you've got a decision to make: Delete it, or keep it?

These decisions are made daily by hundreds of millions of people around the world, often without more than second of thought.

That may be fine if you're reading a friend's message or a consumer solicitation on your home computer. But if you are a public employee, a hasty deletion could be a crime. Really.

A 1961 Missouri law requires all government records to be kept open for public inspection. Officials who violate the law can be impeached, removed from office and charged with a misdemeanor crime punishable by up to 90 days in jail and a $100 fine.

That law was passed long before anyone envisioned e-mail as a replacement for paper. But modern laws treat e-mails no differently than paper documents when it comes to public records.

Thus the controversy that erupted when Gov. Matt Blunt's staff members recently acknowledged they frequently delete e-mails. Blunt admits he does it, too.

"I probably have four or five different e-mail accounts, like lots of people," Blunt said in an interview. "Some e-mails I might keep a long time. Some e-mails I delete as soon as I receive, and will continue to do so."

So does that make the governor a lawbreaker?

"My position is we're in compliance with the law," Blunt said.

Applying Missouri's public records laws to real-life situations is not always simple. In fact, it sometimes requires a lot of interpretation.

One thing that's clear is that electronic mails are public records subject to Missouri's open-records law.

The Sunshine Law (Chapter 610 of Missouri's statutes) specifically defines a "public record" as "any record, whether written or electronically stored" that is retained by a public governmental body.

But that doesn't mean government employees must save all their e-mails, because state law specifically allows some records to be destroyed.

Missouri's record retention law (Chapter 109) delegates decisions on which things to keep, and for how long, to the State Records Commission, led by the secretary of state. That commission updated its general policy last month, though some state offices still have specialized policies that are a decade or more old.

Correspondence -- whether by e-mail or paper -- related to the development, implementation or review of government policies and plans are supposed to be kept permanently, so they can be included in the State Archives.

Other forms of general correspondence -- including staff appointment calendars, project progress reports or messages that do not subsequently result in the formulation of policies -- are to be kept for three years before they are destroyed.

Still other kinds of correspondence -- like holiday notices, details about charitable campaign drives or routine information requests that require no administrative action or policy decisions -- can be destroyed as soon as they are obsolete (be that almost immediately, a few days or whenever).

The responsibility essentially falls on each government employee sending and receiving an e-mail to judge whether it can be deleted or should be saved.

"We don't keep every e-mail that we receive and send for three years," Blunt said. "I don't think very many people do."

The Republican governor is being challenged in the 2008 governor's race by Democratic Attorney General Jay Nixon, whose office sent an e-mail to statewide media last week reaffirming that government e-mails are public records under the Sunshine Law and subject to the state's record retention laws. The message referenced the hubbub surrounding e-mail deletions in Blunt's office.

Nixon spokesman Scott Holste said the key factor in the delete-or-save question is the content or nature of the e-mail -- not the medium of communication itself. But like the governor, Holste said he deletes many of the e-mails he receives.

"There are times, for instance with me, when I will print out an e-mail to be kept with the files," Holste said. But "a lot of what we do would be transitory communications -- they would not have to be retained."

State agencies -- Blunt's and Nixon's office included -- often supply e-mails in response to Sunshine Law requests for records. But when they don't, it raises questions about whether there simply were no written communication on a topic, or whether those e-mails got deleted by someone who didn't consider -- or even ignored -- their responsibility to them.

That's why admissions of frequent e-mail deletions are so concerning to open-records advocates.

"I suspect that when we were dealing with paper that, yes, there was a real careful assessment of these records before they were destroyed, because it would be something assigned to somebody as a project and they would be given a large trash can," said Jean Maneke, a Sunshine Law attorney for the Missouri Press Association.

"But I think it's something different when you're dealing with electronic records and the delete key is so handy," she added. "I really wonder whether anyone stops to think about the state policy for retention purposes."

Once an e-mail is deleted, it's hard to know whether it should have been saved.

Under such scenarios, "e-mail becomes a wonderful way of avoidance of the Sunshine Law," said Charles Davis, executive director of National Freedom of Information Coalition based at the University of Missouri-Columbia, "because you can say, 'I'd happily give that to you, but it never existed on paper, it was just an e-mail, and it's gone.'"