Governor’s Office Still Gets It Wrong On E-Mail Retention

During the first days of the Texas Youth Commission scandal, Texans became aware of the “seven day delete policy” imposed by Texas Governor Rick Perry’s office with regard to e-mail.

Now, after an enterprising open government advocate managed to throw a bounder in the path of this practice, resulting in it being stopped, we learn more about the workings of the Governor’s records retention policies with regard to email. It’s not good:

“That was disabled [Thursday],” Moody said. The governor’s office is “holding all e-mail correspondence and not wiping clean the server after seven days.” She said it’s typically up to each employee of the governor’s office to set aside and save e-mails that they believe should be preserved as public records. Otherwise, they get whacked automatically.

“We believe our staff is acting lawfully and in good faith,” Moody said. She said Perry’s office receives a “high volume” of e-mail and doesn’t have the server space to keep them indefinitely.

She also said the governor’s office believes that some government e-mail, such as informal exchanges between employees about going to have coffee or lunch, don’t have to be saved at all and can be deleted within minutes or hours after they’re created.

“They are transitory, we’re not required to [save them],” Moody said. “Basically, e-mails that have nothing to do with state business are eligible to be deleted at any time.”

There are a lot of problems with that statement. First, let’s take this part:

The governor’s office is “holding all e-mail correspondence and not wiping clean the server after seven days.”

Not “wiping the server clean?” Hold on a minute! Either the Perry spokesperson doesn’t understand the law, doesn’t understand what a server is, or the office was lying several months ago when all of this was in the media.

“Wiping the server clean” is significantly different than individual employees purging their in-boxes and saved messages. Even when the messages are deleted in a program like Microsoft Outlook, remnants of the emails remain on servers or backup tapes. Everyone who followed the Monica Lewinsky scandal, Phen-Fen litigation, and, more recently, the U.S. Attorney firing scandal, knows this. Scrubbing the servers once a week, however, means that even those remnants and traces are being ‘cleaned’ and are possibly gone forever.

This is also problematic:

She said it’s typically up to each employee of the governor’s office to set aside and save e-mails that they believe should be preserved as public records. Otherwise, they get whacked automatically.

First of all, it is not up to each and every employee to determine what should be saved and what shouldn’t. A number of standards come into play in this regard. First, the Texas Government Code requires the Texas Library and Archives Commission to establish records retention schedules for local governments and state agencies. These records retention schedules, which the agency has even made into nice sample policies for agencies, mandate what types of materials must be saved and for how long:

(1) Administrative Correspondence, 1.1.007 – Incoming/outgoing and internal correspondence, in any format, pertaining to the formulation, planning, implementation, interpretation, modification, or redefinition of the programs, services, or projects of an agency and the administrative regulations, policies and procedures that govern them. Subject to Archival review. Retention: 3 years.
(2) General Correspondence, 1.1.008 – Non-administrative incoming/outgoing and internal correspondence, in any media, pertaining to or arising from the routine operations of the policies, programs, services, or projects of an agency. Retention: 1 year.

The Texas Administrative Code also sets forth some requirements and definitions with regard to what are “archival records,” and should be retained:

(1) Archival state record–A state record of enduring value that will be preserved on a continuing basis by the Texas State Library and Archives Commission or another state agency until the state archivist indicates that based on a reappraisal of the record it no longer merits further retention.

(2) Electronic mail record–An electronic state record sent or received in the form of a message on an electronic mail system of a state agency, including any attachments transmitted with the message.

Of course, an e-mail can and often is a state record that would meet the standards of a “record of enduring value.”

Thus, the individual staffer really does not, to a great degree, have the ability to say what is and what is not to be kept. They must follow the guidelines set forth under the Texas Administrative Code and the policies established, pursuant to legislative mandate, by the Texas Library and Archives Commission.

Where the governor’s office appears to give its staff such great latitude is in the area of so-called “transitory” records:

“They are transitory, we’re not required to [save them],” Moody said. “Basically, e-mails that have nothing to do with state business are eligible to be deleted at any time.”

The governor’s office is right–to a degree. Let’s look at how the Texas Administrative Code defines “transitory information:”

(8) Transitory information–Records of temporary usefulness that are not an integral part of a records series of an agency, that are not regularly filed within an agency’s recordkeeping system, and that are required only for a limited period of time for the completion of an action by an official or employee of the agency or in the preparation of an on-going records series. Transitory records are not essential to the fulfillment of statutory obligations or to the documentation of agency functions.

To an extent, the Governor’s office is correct: an email from one staffer to another to coordinate a smoke break is a transitory record. However–and this is part of the problem with all of the state’s policies with regard to e-mail retention–the definition of a transitory record is so ambiguous that leaving this to the individual staffer to decide what is and is not transitory is asking for disaster. We’ve already seen TYC emails deleted–evidently as “transitory.”

What about emails between staffers in the governor’s office about policy changes, legislation, ongoing scandals, and various and sundry meetings between folks across state government. You could sit down and consider any of this “transitory.” However, all of these records are “essential to the documentation of agency functions.” How often and when someone in the governor’s office corresponded with someone at the Texas Youth Commission about state business is essential to the function of the governor’s office because it shows that was, or was not, done. One could even argue that the “smoke break” and “coffee break” emails should be preserved so that a taxpayer could determine if the governor’s staff was wasting taxpayer dollars by sitting at a Starbucks all day long.

So, yes, emails that have nothing to do with state business may be deleted at any time, but the judgment call on what falls under that category is not, in fact, that of the individual staffer but within the guidelines set forth in the Administrative Code and the Library and Archives Commission’s records retention policies.

This does bring up another nettlesome issue, though. Technically, emails that have nothing to do with state business shouldn’t be sent from state email accounts and thus would never be subject to the state’s records retention maze to begin with. A certain amount of “personal” correspondence is to be expected even though perhaps not technically allowed by the law (or even state policy). The question now arises, however, as to how much political business and email is being dumped as transitory because the individual staffers believe it has nothing to do with state business.

We’ll leave you to ponder that over your morning coffee.

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