Shari,
In KY, as I'm sure in most states, a city is by no
means immune from a discovery order "e" or otherwise.
There are certain things a private citizen may not be
able to sue the "government" over, but another
government entity (such as the state's AG's office
enforcing an Open Records Request) certainly could.
And the courts can look at anything they want
electronic or otherwise.
In KY, email is an open record (under the right
circumstances), which means it's subject to the Open
Records Act (KY's version of Freedom of Information).
As an open record, it can be requested in electronic
form if that's the format it is held in and/or used by
the agency. The Open Records Act extends to backup
tapes as well. So even if the information is printed
and filed (a perfectly acceptable way of managing the
record as per all of the comments on the list), if it
still exists on a backup tape then the information
COULD still be requested in electronic form.
The AG's office in KY enforces the Open Records Act
and the offending agency can be fined "X" dollars per
day (I'm not sure what the actual fine is) until the
information is produced in a form that satisfies the
request. Keep in mind that all of this can be
appealed to the courts - which then opens the agency
to discovery orders.
As records officer, again in our state, part of your
responsibility is to inform the agency of it's
obligation. If the agency doesn't chose to follow the
law the problem rests with the head of the agency (or
the legal entity that advises the head). As someone
said in a previous message, I would retain the records
that document your recommendations to the city and the
records of their response.
Mark J. Myers
Electronic Records Specialist
Public Records Division
Kentucky Dept. for Libraries & Archives
300 Coffee Tree Road, P.O. Box 537
Frankfort KY 40602-0537
Phone: 502.564.8300 ext. 244
Email: [log in to unmask]
--- Shari Coughenour
<[log in to unmask]> wrote:
> Our computer tech committee decided that the best
> practice is to print out "important" e-mails and
> file. Our attorney has been directed to write a
> policy on this premise. I will suggest to our
> attorney to include language that the records need
> to be identified and filed by topic/relative nature
> following the retention schedule. My first question
> to the list is as "records custodian" what liability
> would I personally have due to this policy if we're
> directed by a court to submit electronic records
> that we don't have?
>
> Our city has decided that they're willing to accept
> the risk of not keeping electronic information past
> the length of the backup tape recycle time.
> I've forwarded the list's information regarding the
> e-mail best practices thread of a week or so ago to
> the city administrator, city attorney and technology
> person in hopes of enlightening them. They perceive
> me as chicken little, proclaiming "the sky is
> falling in". Perhaps they don't perceive the risk or
> they are willing to assume the risk. I had a
> risk/benefit conversation with my immediate
> supervior, the city administrator and he told me
> that e-discovery isn't relative to our city. My
> second question: Am I really chicken little? I'm
> thinking the city is not exempt from lawsuits or a
> discovery order. In fact, we do have a lawsuit
> brewing relating to a land deal. Fortunately, I've
> not any e-mails regarding this other than some
> records requests for minutes of meetings, which
> requests are transitory in nature and not kept.
> Thanks for your feedback.
>
>
> Shari Coughenour, CMC
> City Clerk
> City of Marshalltown
> 24 N. Center Street
> 641-754-5701 ph
> 641-754-5717 fax
> [log in to unmask]
>
> List archives at
> http://lists.ufl.edu/archives/recmgmt-l.html
> Contact [log in to unmask] for
> assistance
>
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