The Dane County, Wis., controversy over the deletion of thousands of eMail messages from members of the public voicing opinions about whether the school board should prohibit students from saying the Pledge of Allegiance (story, page 8) raises some serious issues with respect to how school districts that are web-savvy and internet-connected deal with the eMail they receive.
When one member of the public requested copies of the eMail files under the Wisconsin open-records law, he was informed that the school district had deleted most of the eMail records, ostensibly because the records were clogging the server’s hard drive.
The legal counsel for the school district is quoted as making the following incredible statement: “We don’t have a legal obligation to keep every eMail that is sent to the district, unless a request has been made.” An outside legal expert was quoted on the matter as saying, “I am not aware of any laws that state how long an eMail must be kept. 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.”
An attorney for a national association also was quoted, emphasizing the need for school districts to establish a clear policy. This is actually good advice, but amounts to painting the barn door while the horses look on from the field.
In most states, the right of citizens to review or obtain copies of public records is established under state law. While not all laws have been updated to deal with eMail, the rule of thumb that seems to have been followed in all jurisdictions that have brought their laws into synch with the 21st century is that eMail is just another form of correspondence.
This makes sense. If I am a citizen with an opinion to express about an issue and I write to my congressman or school board member, it should not matter whether I express my ideas with ballpoint pen on paper or in bits and bytes in an eMail.
Under most state laws and court decisions to date, there is no distinction. Therefore, the legal issues should be rather easy for everyone. If the records-retention law, regulation, ordinance, or policy requires you to keep a letter about a policy matter from Joe Citizen for one year, then that law will require that you keep an eMail from Sally Citizen for the same length of time.
The technical problems that were cited by school officials and some of the lawyers in the Wisconsin case are, in most cases, little more than a high-tech smokescreen-or perhaps a lack of understanding of either the technology, the law, or both. Lack of space on the computer hard drive to store eMails for the time required for correspondence is no excuse.
Like other applications of the law to high-tech situations, I always advise clients to apply the logic of a low-tech analogy. If a school system is required to keep official correspondence or letters from constituents for a year, then the school system is required to purchase the requisite number of file cabinets or boxes to do the job.
The same is true for eMail. A public agency that allows eMail correspondence from the public or for other official purposes cannot discriminate between hard copy and so-called “soft” copy because they are stored in different ways. In fact, many agencies save filing space by “imaging” hard copies onto microfiche or, more recently, scanning the paper copies into digital files that can be stored on computer media.
If you need to obtain more disk space, create “zipped” or compressed archive files, or increase use of back-up media like high-speed tape or zip storage with file compression, then put in the order. The technology is cheap and available.
The bottom line for schools is that, under most public record statutes and rules on the books today, you need to treat mail that comes in data packets and is stored in computer files the same way that you handle letters that come in envelopes with stamps.
Unless your state law does not require you to keep official correspondence, if you don’t have the ability to store or back up the eMail you receive, then you should probably shut off the eMail access (and suspend using the system internally for official mail or any category of correspondence covered by records-retention requirements) until your system is capable of full compliance with the law.