So I guess now we will be required to recover shredded documents?  
 
Trudy M.  Phillips
File Management, LLC 
"Bringing Order Out of  Chaos"
8440 Lanewood Circle 
Leeds, AL 35094
Office:  205/699-8571   Fax: 205/699-3278 
_www.filemanagement.com_ (http://www.filemanagement.com/)  


In a message dated 1/25/2009 6:32:56 P.M. Central Standard Time,  
[log in to unmask] writes:

Use this  link to access the full blog  posting

http://shrinkster.com/13ya

Sent to you by pakurilecz via  Google Reader: FOIA Requires Recovery of
Deleted E-mails via Electronic  Data Records Law | How to Win
E-Discovery by Benjamin Wright on  1/24/09
Electronic Records Had Been Discarded Under Interpretation of  Retention
Policy

Why Allow Deletion If Government Must Later Restore  Records?

A county's formal policy on e-mail destruction failed to save  it from
the cost of recovering deleted e-mails under Ohio's Public Records  Act.
Like FOIA laws in other states, Ohio's Records Act requires  state
government agencies like counties to disclose records to citizens  upon
request.

The case in question is a decision by the Ohio Supreme  Court, State ex
rel. Toledo Blade Co. v. Seneca County Board of  Commissioners, 2008 WL
5157733 (Ohio Dec. 9, 2008). Plaintiff sought  e-mails of county
commissioners concerning demolition of an old courthouse.  The county
turned over some e-mails, but plaintiff managed to show that  some
relevant e-mails were missing because they had been deleted. It  made
this showing by analyzing the e-mails that were turned over and  proving
some logical gaps appeared within them. Also, some  commissioners
admitted they had deleted some of their relevant  e-mails.

The county's written policy allowed each user to delete e-mail  that the
user deemed to be of "no significant value." Such a policy is a  version
of the make-a-decision style of e-mail (text and instant  message)
records management, where users . . .
are expected to decide  the destruction/retention fate of each message.
After the court determined  that some relevant e-mails must have been
deleted, it observed that through  the use of forensics measures some
e-mails might be recoverable from  commissioner hard drives. The county
argued it should not be required to  restore deleted e-mails because
they had been deleted in accordance with  the county's record retention
policy, which the county had adopted in good  faith. Further, the county
argued that forensics measures are excessively  expensive.

The court disagreed with the county. The court ordered the  county to
undertake costly forensics steps to search for and restore  deleted
e-mail records that met certain criteria – all at the county's  expense.

Gadzooks! If a government agency is required under a FOIA to  incur
great expense to recover deleted e-mails after officials had  determined
-- under a formally-adopted policy -- that the e-mails were of  "no
significant value," then it makes no sense to let officials  delete
e-mails in the first place. Such a make-a-decision style of policy  is
unworkable because it will cause the government regularly to  employ
expensive forensics to recover deleted records. As a policy matter,  the
government is wiser just to archive copious records and  take
decision-making out of the hands of individual users.

I have  long questioned e-mail retention policies (the make-a-decision
policies)  that emphasize a user examining each particular message and
then deciding  whether to destroy it or to keep it. But some learned
people disagree with  me. An argument they sometimes make in favor of
the make-a-decision style  policy is that it mimics how paper was
handled. With paper, they argue,  lots of documents came across the desk
of each official. The official would  decide whether to throw the paper
in the trash can, or to place it in  folder A, or folder B or folder C.

Yet this Toledo Blade case  demonstrates that e-mail is different from
paper. Even after e-mail is  deleted, it can still be recovered
forensically. The cost of recovery can  be high, but this court forced
government to incur that  cost.

Technical footnote: The court ruled the commissioners had  probably
violated the county's policy by deleting e-mails that were  of
significant value, when the policy said that only insignificant  records
would be deleted. However, this detail should not change  our
understanding of the case's import. From the point of view of  someone
writing records management policy, the risk is ever-present that  a
court will second-guess users after-the-fact. Therefore, the  policy
writer is motivated just to remove users from  retention/deletion
decisions.

–Benjamin Wright

Mr. Wright is  an advisor to Messaging Architects, a company thinking
hard about how  technology is changing records management.

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