Many county officials have raised questions about how to handle e-mail or how long e-mail should be kept. You will not find an entry in the retention schedules specifically for e-mail. E-mail is more of a format for records than a type of record itself. An inter-office memorandum may be typed and distributed on paper or it may be sent to all staff via e-mail. Either way, the retention period or procedures for managing the record should be determined based on the content of the memo, not its method of delivery. Much of the volume of e-mail that passes through our computers does not relate to official business. Recall the general definition of “public record.”

Public record ... means all documents, papers, letters, maps, books, photographs, microfilms, electronic data processing files and output, films, sound recordings, or other material, regardless of physical form or characteristics made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency.^[1]

This general definition is not as specific as the definition of county public records,^[2] but it highlights the fact that the record may take many different forms. The definition also makes clear that a public record is something created pursuant to law or in connection with the transaction of official business. E-mails unrelated to county business are generally not considered to be public records. Additionally, most email communications that do relate to county business are in the nature of working papers - something which serves as input for final reporting documents and becomes obsolete immediately after use. We recommend the county public records commission establish a policy which authorizes the destruction of working papers as freely and easily as possible so they do not become overly burdensome. But suppose you send someone a notice of a promotion solely via e-mail.  According to the listing in the retention schedule for Promotion Records of Notices (see item 16-031), this record should be kept for one year from the date the record is made or the action is taken, whichever is later. A copy of this e-mail should therefore be retained at least that long.

Network administrators or information technology specialists will tell you that it is highly complex or expensive to manage electronic correspondence on an individual e-mail basis. Some e-mail programs have archiving features or a means of designating for preservation. But most likely, your office has a policy of backing up all the data in an e-mail server for a limited period of time. Eventually, the back up tapes or disks will be discarded or over-written. Many e-mails will be deleted by the person receiving them and possibly never make it to a back-up tape. Of course, every copy of a public record does not have to be kept. If you have electronic correspondence that would be considered a public record based on its content, it is recommended that you print that out and preserve it as a paper record or that you institute some means of designating certain e-mail files for preservation. 

E-Mail and Privacy

If your office uses e-mail and the Internet, hopefully you have some form of usage policy. Such policies should put employees on notice as to limits on their expectation of privacy in their e-mails under the public records law. If it has not happened yet in your county, you may expect that at some point in the future you will receive a public records request from the media or from citizens to get a copy of e-mail correspondence of the office. Any county offices using e-mail correspondence to conduct the business of the office should keep this in mind.