City E-Mails to Be Purged After 6 Months

3 Aug 2007 // D.C. Mayor Adrian M. Fenty, who uses three BlackBerrys and relies heavily on e-mails to communicate with top aides and residents, has decided that the majority of the city's electronic messages should be destroyed after six months.

The pilot program, which will begin in January, is a response to the growing debate over how to handle government-generated e-mails. Fenty (D) issued the administrative policy July 5 without any fanfare, authorizing the Office of the Chief Technology Officer to eliminate most e-mails in what he described as a cost-saving measure. The order wasn't made public until last week, when it was posted on the Web site of the Office of the Chief Technology Officer.

"All e-mail bearing a date older than six months . . . regardless of agency, sender, recipient or any other attribute -- will be deleted automatically and permanently from the D.C. government e-mail system," Fenty wrote in his order. "This deleted e-mail will not be retained on any media or log."

Establishing a policy on e-mail retention places the District in the forefront of the issue of how to deal with government e-mails, which has affected record-keeping.

The District's policy includes a provision for preserving e-mails that might be needed for legal matters.

D.C. General Counsel Peter Nickles, who helped write the city's policy, said it is conservative because it allows e-mails to be retained for six months and kept on backup tapes for eight weeks. It won't be effective until January. Employees have six months to review their messages and arrange to save ones deemed necessary.

"Eighty percent of e-mail has nothing to do with the efficient operation of government," Nickles said. "The system is overwhelmed. The city is spending a lot of money, and we have to deal with that."

The national debate over what to do with government-generated e-mails has intensified in the past few months after a scandal involving the White House. Several White House e-mails, including some detailing the firings of federal prosecutors, were deleted from private e-mail accounts. Under federal law, the White House is required to maintain records, including e-mails, involving presidential decision making and deliberations.

As jurisdictions across the country conduct more government business electronically, local officials are finding that they face problems over what to do with the messages. Some, such as Philadelphia, have adopted policies to keep e-mails for as few as 30 days; others, such Cincinnati, keep them for 90 days, D.C. officials said.

Experts on record-keeping said that a key concern when adopting policies is how to determine which e-mails qualify as public documents. Some officials view e-mails in the same context as phone conversations that are not recorded or voice mail messages that are played and quickly erased.

In the District, the policy gives the public records office the authority to preserve "selected e-mails" from the mayor and other top officials, but it doesn't outline how those decisions will be made. It also does not address how e-mails sent by city government officials on their private accounts will be handled.

Nickles said the city's public records office will review e-mails and determine which ones will be retained based on historical significance, legal concerns and the city's positions on important matters.

"The Office of Public Records will be keeping tabs on e-mails from the mayor, all senior Cabinet members and agency heads and will be looking at those e-mails and making some general judgments as to what should be kept," Nickles said. "I'll be interacting with them."

David L. Marburger, a lawyer in Cleveland who represents the Ohio Coalition for Open Government, said it is common for jurisdictions to give e-mails a relatively short shelf life.

In some cities, all of the mayor's e-mails are public records, he said. He questioned how Fenty's e-mails would be judged and whether it is proper to allow the records administrator to decide what to keep.

"If it's purely discretionary, I have a huge problem with that," Marburger said. "It would be whatever they feel like keeping. What you need is some uniform, objective criteria where most people applying that criteria would come up with the same answer."

In Virginia, e-mails sent and received by the governor are maintained for the length of the official's term before the correspondence is sent to the state archives. The e-mails are also saved so that the governor's office can respond to requests under the Freedom of Information Act.

"The governor's staff works under a policy of saving virtually all e-mails because of the FOIA and its history and archival material," said Kevin Hall, a spokesman for Gov. Timothy M. Kaine (D).

In Maryland, Rick Abbruzzese, a spokesman for Gov. Martin O'Malley (D), said he is unaware of a state retention policy on e-mails.

Some experts on e-mail archives say that some jurisdictions have been penalized for not producing e-mails needed for court cases.

In Akron, Ohio, two city employees won a lawsuit after the city deleted e-mails regarding their overtime hours. They said they were owed about $1,000, Marburger said. The city ended up paying them nearly $1 million because the e-mails were not available.

Fenty uses three BlackBerrys -- one for mayoral duties, another to contact the police chief and the third for personal information. But in response to a recent FOIA request by The Washington Post for e-mails sent and received by Fenty, only correspondence from constituents was provided. The response did not include any messages sent by Fenty or received by him from his staff. The FOIA officer said e-mails were redacted because they were personal.

Anne Weisman, chief counsel of the watchdog group Citizens for Responsibility and Ethics in Washington, said it is unclear whether the District is taking the proper steps to document electronic messages as it would paper records.

"You're going to lose the back-and-forth [conversation] that leads to major decisions," Weisman said. "If they have an official policy saying that they don't need to keep it and they end up deleting e-mails, they can't be criticized, because they are following official orders."