Bar News - June 21, 2017
Municipal & Governmental Law: Government Email Management: What’s in Your Client’s Inbox?
By: Barrett M. Christina and Orville Fitch II
Emails “created, accepted, or obtained by, or on behalf of, any public body, or a quorum or majority thereof, or any public agency in furtherance of its official function” are governmental records, according to RSA 91-A:1-a, III.
Managers and legal counsel for school districts and municipalities should know what is in their government-operated email systems. They should ensure policy, procedure, training, and compliance are in place for proper record preservation and destruction.
Municipal and school district systems contain emails which, like the paper records on the same subject, must be retained permanently or for specified periods under federal or state law. RSA 33-A:3-a provides municipalities with 156 categories of records with preservation periods ranging from permanent to “as needed for reference.” RSA 189:29-a, assigns school boards responsibility for setting a record retention schedule. The New Hampshire School Boards Association’s sample retention schedule has more than 115 categories.
There are a large number of federal and state statutes and regulations that impose specific retention requirements and a few specific destruction requirements. All categories of records are subject to potentially longer retention when there is a litigation hold or a Right-to-Know request.
Government email systems also contain transitory emails, such as scheduling, news aggregations, professional and nonprofit organization messages, etc. that fall within the broad scope of being “in furtherance of its official function,” but provide de minimums information about what government is doing. For municipalities, such transitory correspondence needs to be retained only “as needed for reference.”
Additionally, government email systems contain messages between public employees and their family members or friends – personal emails that are not created or received in furtherance of the individual’s official function and may not be governmental records. “The legitimacy of the public’s interest in disclosure, however, is tied to the Right-to-Know Law’s purpose, which is ‘to provide the utmost information to the public about what its government is up to,’” states the NH Supreme Court’s slip opinion in Reid v. New Hampshire Attorney General (Dec. 23, 2016) (quoting NH Right to Life, 2016).
If these “personal” emails constitute evidence of public official or employee misconduct, they provide information on “what government is up to.” If there is a policy forbidding personal use of the government email, each personal email sent may be evidence of a policy violation. If the volume of personal emails document that the employee is spending excessive work time on personal business, show the employee is conducting personal for-profit business at work, or is unlawfully electioneering, the emails may be evidence of misconduct, thereby potentially a governmental record subject to disclosure. At the least, the personal emails in the system at the time of a Right-to-Know request or litigation hold will need to be reviewed to determine if they are responsive governmental records or potentially relevant to the litigation. At most, they may need to be disclosed.
Preserve or File and Cull?
The federal government requires its email system users to cull federal email systems of transitory and non-governmental record emails. Culling typically includes destroying spam, email blasts (agency-wide communications), and personal materials (such as emails to family members not related to agency business). Culling may be manual, automated, or a hybrid of both, according to online government advisory documents. Agencies may require that emails, just like paper records, be sorted and filed. For agencies not equipped to convert emails to PDF and maintain them in archival storage, it may be prudent to print to paper and file limited categories of governmental records, such as those that must be retained permanently under RSA 33-A:5-a.
While the cost of electronic storage makes permanently preserving all emails possible, the benefit versus the cost of filing and culling should be carefully analyzed. If either a Right-to-Know request or a litigation hold compels a thorough review of a voluminous archive of emails, which could have been legally destroyed and that are not systematically filed, the human resource costs, technology costs, and legal fees may quickly wipe out any cost savings from choosing preserving all over a system of filing and culling.
The United States military has adopted a “Bottom Line Up Front (BLUF)” strategy, starting emails with a succinct statement of the subject and the action needed from the recipient. Using BLUF provides detail only after the recipient has been told what he or she needs to do with that information. A November 2016 article in the Harvard Business Review, “How to Write Email with Military Precision,” describes this method.
Leading with a clear statement of the subject and limiting emails to one subject simplifies the process of filing, culling, or reviewing emails to determine if they are subject to a litigation hold or responsive to a Right-to-Know request. When emails address multiple subjects they are more expensive to file, cull, or disclose, particularly if redaction is required.
The broad availability of free email accounts, smartphones, and email web portals makes it practical to have a policy discouraging personal use of the government email system. Educating employees regarding the risk of public disclosure of personal emails on the government system may help motivate the use of personal accounts for personal business.
Particularly for elected public officials and agency leadership, policies and training should be provided relative to moving certain emails that need to be treated as government records from personal accounts to the government system, for response and retention. Policies and training should also instruct email users how to distinguish between permanent, temporary, transitory, and non-record emails.
Prudent management of government email systems can help ensure compliance with retention laws, litigation holds, and Right-to-Know disclosure requests, as well as control costs and improve performance.
Barrett M. Christina is the deputy executive director of the NH School Boards Association, in Concord, NH. He has been providing policy advice, training, and legal guidance to New Hampshire school boards for 12 years.
Orville “Bud” Fitch II is staff attorney for the NH School Boards Association. He has previously served as legal counsel and state director for US Sen. Kelly Ayotte and as deputy Attorney General for the State of New Hampshire.