In a case that raises questions about how long school districts must keep electronic records to avoid litigation, a Madison, Wis., district attorney is investigating whether the local school district’s deletion of certain sensitive eMail messages was legal.

The electronic messages in question pertain to the controversy surrounding the school board’s decision to prohibit students from saying the Pledge of Allegiance.

Phillip Prange, an area Republican fund raiser, filed an open-records request asking that all the eMail sent to the Madison Metropolitan School District about the Pledge of Allegiance controversy be forwarded to him.

The school district said most of the pertinent eMails had been deleted. But an effort is being made to recover the deleted files, while Dane County District Attorney Brian Blanchard looks into whether the deletion was legal.

Prange said he is not involved in an effort to recall school board member Bill Keys, who made the motion to bar group recitations of the Pledge of Allegiance in the district’s schools.

The board passed the motion but reversed itself after a wave of protest.

Prange acknowledged that the more than 22,000 messages could be used to form a contact list of those who might help in an effort to recall Keys. The recall drive is being lead by former state representative Scott Klug, a Republican. But Prange said that was not the purpose of the request. He said he just wanted to read the messages.

School district spokesman Ken Syke said the eMails were deleted because their bulk threatened to cause problems with the district’s computer system.

He said the district already has offered up the few hundred eMails that were not deleted, as well as other records related to the pledge controversy. Syke said that if the deleted files are recovered, they would be delivered immediately.

Prange said in a letter to Blanchard that his office requested the eMails Oct. 17 and was told two days later that they no longer existed.

On the 24th, Blanchard said he was writing a letter to Superintendent Art Rainwater, requesting the school district’s version of events.

The district attorney said eMails are clearly documents protected under the state’s open-records law, but he added that they generally could be considered an “arguably more perishable form” of public record.

Blanchard said deleting eMails might not constitute a public-records violation if their sheer number was indeed interfering with the computer system.

The key piece in evaluating the situation is when the eMail was deleted, he said.

Clarence Sherrod, legal counsel for the school district, said the eMail was deleted more than a week before the open-records request was made and was done strictly to deal with technical problems with the district’s computer system.

“We don’t have a legal obligation to keep every eMail that is sent to the district, unless a request has been made,” he said.

School law expert Craig Wood said that because the eMails are electronic documents, they are, indeed, subject to open-records requests. But timing, he agreed, is the key element in determining liability.

“If the eMails were destroyed after the written request for them was submitted, then Prange has a winner,” said Wood, a partner in the law firm McGuireWoods LLP of Charlottesville, Va. “He was entitled to the documents in electronic form, and the district would have illegally destroyed them.” On the other hand, no one keeps electronic documents forever unless required by law to do so, Wood said.

“I am not aware of any laws that state how long an eMail must be kept,” he said. “If the eMails were deleted before the request was made—and were deleted for a legitimate purpose, such as to maintain the integrity of the computer system—then the deletion was not improper.”

The Madison case underscores the need for schools to back up all electronic files in order to keep a backlog of electronic documentation, Wood said.

“One might ask why [the messages] were not copied to a back-up disk instead of being destroyed, but … that is a matter of poor policy, not illegality,” he said.

Edwin Darden, senior staff attorney for the National School Boards Association, said his organization recently published a book of legal recommendations for school administrators, in which eMail communication is broadly addressed. The Madison case brings up several legal questions, he said.

“One issue is, what is the school district’s customary policy on deleting eMails?” said Darden. “We say it is favorable for a district to decide how they are going to handle [the deletion of] eMails before litigation occurs.”

Darden recommended that schools establish a policy dictating how often to delete eMail transmissions, because “once litigation of any sort begins, you can’t start to arbitrarily institute policy at that point.”

The Madison case might have legal implications in Wisconsin, but it’s important to remember that open-records laws applying to eMail vary widely from state to state, Darden noted.


Madison Metropolitan School District

McGuireWoods LLP

National School Boards Association

Legal Issues & Education Technology: A School Leader’s Guide