There's at least one more that is increasingly being taken into account specifically in the public sector: 

5. Is it related to the business or mission of the organization? 

In many states the statute is pretty clear: org resources, org time, it belongs to the org. However, the courts are starting to rely much more closely on the content of the message rather than what the statutes say. See e.g. 

http://eddblogonline.blogspot.com/2010/02/personal-emails-retained-by-public.html
http://e-discoveryteam.com/2007/08/05/are-government-employee-emails-always-a-public-record/
http://sunshinereview.org/index.php/WVa_Supreme_Court_Rules_Personal_Emails_Not_Subject_to_FOIA_Requests

This last one is the most interesting because it references other cases. A couple of weeks ago a measure was apparently introduced to specifically bring officials' emails into the public records sphere but, well, review the wording: 

"The text of House Bill 4500 will add an additional definition of "public records" which will include all records, "prepared or received by a public body, the content or context of which, judged either by its content or context relates to the conduct of the public's business." 

I am not an attorney, but that sound to me like that 5th element above. So how should records managers proceed? Make sure that you're doing what the black-letter law requires but you might be proactive in hecking with your state atty general, city atty, or other counsel. 

Respectfully submitted on behalf of myself and no other company, organization, association, entity, or board of directors,

Jesse Wilkins, CRM, CDIA+, ecmm, emmm, ermm
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(303) 574-0749 direct
Twitter: http://www.twitter.com/jessewilkins 

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