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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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