Open Records and Sunshine Laws Put Pressure on State Agencies to Archive Email

                In a recent conversation with Gary Tidd, CEO of Estorian, he mentioned a sharp rise in interest from State, Local, Education and Departments (SLED in sales-speak). Many smaller state agencies like school boards and police departments were seeking a fast, low threshold way to comply with new email retention requirements. His comment resonated with several recent news stories about the consequences when governmental entities fail to keep email or even worse, when they have it on tape and cannot get to it in a timely efficient fashion.

Federal agencies have had information access and retention requirements since the Freedom of Information Act was signed into law by President Lyndon B. Johnson on July 4, 1966. President Bill Clinton amended the act in 1996 to include electronic information. All of the States have enacted some form or open record or Sunshine Law legislature that defines retention requirements and access procedures for requesting public records. Florida is well known for having one of the most comprehensive Open Government initiatives.

Many or most states put these Sunshine laws into effect well before email became the dominant communication platform. As many as 18 states do not address email as a record in their policies and most states allow their agencies to ‘self-select’ records that will be kept versus deleted as a temporary communication. If this sounds confusing, think about the poor IT director for a state transportation agency or school district. They have these broad preservation mandates without detailed instructions and usually little or no budget to accomplish the directive.

That spells out an immediate opportunity for a SaaS email archiving provider like Estorian LookingGlass. Some states like Illinois have chosen a traditional enterprise archiving platform and have a licensing option for all smaller state agencies. But that still does not provide the budget for the required servers and storage. As long as the SaaS solution meets accessibility, security and open source storage format requirements, the smaller municipal and state branch offices should be able to immediately archive overloaded Exchange servers and remove scattered PST files from the small network. This would enable the agency to comply with litigation or open records requests via search rather than the more expensive, laborious manual collection process.

Missouri’s Republican Governor Matt Blunt probably wishes that his offices had email archiving in place to fend off the attacks from the Democratic Attorney General Jay Nixon. Accusations of deliberate email destruction were raised after the Governor terminated his top lawyer. Requests for the emails in question were met with a $540,000 price tag. The Governor has committed to put an email archive system in place, but it will cost the state $2 million.

The consequences for lack of access can be high. Just ask the former Houston District Attorney, Chuck Rosenthal. He was forced to resign his office after embarrassing and potentially criminal email came to light in a civil suit. His IT staff was unable to extract and cull email from tapes in a timely fashion. So the court stepped in and found approximately 2,500 email deleted after the preservation order, emails regarding an ongoing affair and political activities on city time. We could go into the woes of Detroit’s Mayor Kwame Kilpatrick, but I think that you get the picture.  Email and other electronic communications are defacto business records and public agencies must take steps to preserve and give access to government records or face the consequences.

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