Exemption from preserving records should be deleted
By Roy Ockert Jr.
May 12, 2015
Electronic mail has become a critical part of our American culture. Almost everyone uses it, to such an extent that the U.S. Postal Service is running huge deficits in large because of the loss of letter business.
E-mail is quick and easy, so much so that you can send a message to someone halfway around the world and get a response within minutes. There are other ways to do the same thing, including texting, but electronic mail is more readily available to more people.
The ease of e-mail can also cause great embarrassment. Because we’re not creating a paper record, we tend to think of an e-mail as short-lived. Once it swooshes away from our screen, it’s gone and only the person(s) on the receiving end has a copy. That’s not really true, of course. Even if deleted, an e-mail can remain retrievable on both the sending and receiving computers for some time. And the sender doesn’t control who the receiver forwards the message to, another quick and easy process.
Everyone who uses e-mail has sent or forwarded a message to the wrong person. You know how it happens: You get a crazy message from someone and intend to forward it to someone else, adding a note, “Here’s what that idiot said to me.” But instead of hitting the “forward” button, you hit “Reply.”
Imagine then the dilemma for public officials and employees, who also find electronic mail a mixed blessing. The difference is that when they use it, they are creating a public record that could wind up being published in a newspaper or broadcast on television.
In 2001 the Arkansas Legislature amended the state’s Freedom of Information Act to define “public records” as including “computer based information or data compilations in any medium.” Thus, electronic records came to fall under the law, making those records subject to public disclosure and requiring them to be maintained.
Nationally, former Secretary of State Hillary Clinton has come under fire for using a private e-mail server for public business during her tenure and later deleting thousands of “personal messages.” Whether she violated any State Department rules hasn’t been determined yet, but we know that at least one of her predecessors, Colin Powell, did the same thing.
Arkansas law is more clear, at least until it comes to the certain state officials.
Act 918 of 2005 requires the retention of public records by state agencies, including electronic records.
However, the Legislature chose to exempt from the law:
• the seven elected constitutional officers and their staffs;
• the General Assembly and its committees and staffs:
• the Supreme Court, the Court of Appeals, and Administrative Office of the Courts; and
• public institutions of higher education with respect to academic, research, health care, and existing information and technology applications and underlying support.
Therefore, e-mails to and from these officers may be public, but the law doesn’t require them to be kept. Actually that provision would seem to apply to paper records, too.
Confusion over the law got State Treasurer Dennis Milligan in trouble last week.
Milligan, a first-termer, was already in trouble over various problems in his office, including allegations that a deputy chief of staff used his American Cancer Action Network e-mail account to campaign for Milligan, which would have violated the nonprofit organization’s rules. Unfortunately, the offending messages had been deleted.
Then some e-mails that had not been deleted were quoted in a story about the firing of a longtime supporter, David Singer, from the treasurer’s office — another embarrassment for Milligan.
Finally, Milligan announced a policy to delete office e-mails after 30 days, causing an outcry from news organizations that had been finding plenty of juicy information in the office’s e-mail archives.
Jim Harris, Milligan’s chief of staff, said the action would save money and bring the office in line with the policies of the offices of the secretary of state and attorney general.
As it turns out, there isn’t a consistent policy among the various offices. An Arkansas Democrat-Gazette reporter checked around and found the deletion timetable to vary from seven days in the office of the lieutenant governor to four years in the office of the land commissioner. The governor and state auditor don’t have a policy.
After getting a negative reaction, Milligan reversed his decision to adopt a 30-day deletion policy, but Harris wondered out loud why no one reacted when the secretary of state adopted that policy.
Good question.
The notion that deleting e-mails will save money is ludicrous. E-mail messages take up little disk space unless they have pictures attached. Internet providers may have space limitations for e-mail archives, but it’s simple to download them to the host computer or a local server. Computer space is cheap.
The Legislature should do away with all those officials and state officers who get an exemption from to requirement to preserve state records. But don’t bet on that happening because the lawmakers would probably have to give up their own exemption at the same time.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.