A Basic Definition to Guide the Discussion: E-communications that meet the definition of records must be retained according to a schedule and must be accessible in the case of a FOIA request and conversely deleted according to that same schedule.
Two Thoughts:
You need to have a documented plan for how email and electronic communication is retained and how staff are trained.
E-mail archiving/retention and policy IS document archiving/retention policy (i.e. not separate policies)*.
*E-communications that are records conform to the already define records retention policy.
Responsibilities and Roles:
Who is Responsible for Retention?
Official Records: Senders are the “person of record”
Official Records: Recipients may need the record to support business functions
Transitory Records: Retain until task or activity is completed
Non-records: Informational copies do not need to be retained
Roles:
Employee
Decide which messages to keep and which to destroy
Empty e-mail trash bins to purge deleted messages frequently
File the messages that are retained in an organized filing system*
Identify which retention schedule mandates the message’s retention or authorizes its destruction
Management
Ensure that Retention and Disposal Schedules are accurate and comprehensive
Adopt and distribute an e-mail retention and training plan for staff
Adopt and distribute an acceptable use/etiquette policy
Communicate with relevant employees, attorneys and information technology staff when a FOIA request is received or when litigation appears to be imminent
Attorney
Zubulake v UBS Warburg (2004)
Counsel must actively oversee and direct the discovery and preservation process—merely issuing an order or memo is not enough.
Counsel must meet with key players in the litigation to ensure they understand their role and duties.
Counsel must take steps to protect relevant records.
Counsel must be familiar with the client’s document retention policies.
“The litigation hold instructions must be reiterated regularly and compliance must be monitored.”
Information Technology
Define backup processes in writing
Purge backup tapes on a regular basis to ensure that deleted e-mail messages cannot be recovered
Organize and index backup tapes so requested information can be located
Work with attorneys to protect e-mail messages that are needed as evidence
Note: It may be challenging to fulfill these responsibilities if the local government contracts with an e-mail service provider (such as Yahoo, MSN, etc.)