Have Records? Have E-Mail? What to Keep, What to Delete, and How to do each

Jim Corridan, Director Indiana Commission on Public Records

Heather Willis NealIndiana Public Access Counselor

ISBA School Law SeminarJune 12, 2009

Retention of Records State law requires Indiana governments to

protect records from loss, alteration, mutilation, or destruction.

Each agency must follow the agency’s retention schedule adopted by the Indiana Oversight Commission on Public Records; the state and local General Retention schedules cover records which are not agency-specific.

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County Records Commission Each County has a Records Commission which

meets annually. Recommends to ICPR the destruction or

transfer of local records not found on a schedule.

Approves the destruction or transfer of local records listed on a schedule.

The Superintendent of the school corporation located in the County seat serves on the County Commission.

County Clerk liaison to ICPR and by statute serves as the local commission’s secretary.

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PART 1: Agency related e-mail conducted on government computers is a public record. Indiana Code 5-14-3-2 defines a public record as: any writing, paper, report, study, map, photograph, book, card, tape recording, or other material that is created, received, retained, maintained or filed by or with a public agency and which is generated on paper, paper substitutes, photographic media, chemically based media, magnetic or machine readable media, electronically stored data, or any other material, regardless of form or characteristics.

OCPR Email Policy 05-01

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PART 2: The General Assembly essentially precludes any government employee from determining individually what is or is not a record: anything, on any medium and created for any governmental purpose, falls under the rubric of public records law. Consequently, e-mail messages are public records and are subject to record retention requirements.

Email as a Public Record

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PART 3: Electronic Mail is not a record series for retention scheduling purposes. Rather, the retention of E-mail must be based on content, not media type. E-mail should be retained for the same duration as other records of similar content included in a given record series on an approved retention schedule.

Email Retention

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Non-court records whose retention schedule states the records may be destroyed after a retention of ten (10) years or less, whether listed on the General Retention Schedule for all state agencies or on an agency-specific records retention schedule, may be converted from paper to electronic format, and the paper may be destroyed after verification of the electronic records for accuracy and legibility, provided:

Digitizing Short-Term Records

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1) the imaging system has been approved by the Commission on Public Records before the conversion process begins,

2) it meets the Commission on Public Records standards for quality, migration, readability, and backup availability,

3) the agency can guarantee the records will be accessible for the life of the retention period,

4) an indexing system will be in place to allow for rapid recovery of electronic records, and

5) during the initial 12 months of the imaging program commencing, the original paper records will be retained to guarantee recovery should the system fail and should a failure occur, they shall be retained until the end of twelve months or until the problem is resolved, whichever is greater.

Digitization Requirements

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A large percentage of school records are permanent.

You can only destroy or transfer permanent records if you MICROFILM the original records and seek permission from County and State Oversight Committees.

If you digitize permanent records, or they are submitted electronically they MUST also be converted to microfilm.

Digital Records are NOT recognized as a permanent format to preserve information.

Permanent Records

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Access to Public Records ActBasics “Providing persons with the

information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information.”

The full text of APRA can be found at Ind. Code 5-14-3.

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Access to Public Records ActBasics

General rule:

Any person may inspect and copy the public records of any public agency during the regular business hours of the agency, except as provided by section 4 of the chapter (which addresses exceptions to disclosure). I.C. § 5-14-3-3(a).

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Access to Public Records ActBasics

“Public records” are broadly defined: can be summarized as “any material that is created, received, retained, maintained or filed by or with a public agency.” I.C. § 5-14-3-2(n).

The Indiana Court of Appeals has added to this definition any material created for or on behalf of a public agency. Knightstown Banner v. Town of Knightstown, 838

N.E.2d 1137 (Ind. Ct. App. 2005).

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Access to Public Records ActUse of Technology

Electronic Mail Any record, including electronic media,

created received, retained, maintained, or filed by or with a public agency is a public record.

Therefore, electronic mail messages are public records if they are created, received, retained, maintained, or filed with a public agency, including a governing body.

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Access to Public Records ActUse of Technology

Email messages maintained in a personal email account (e.g. Yahoo! account) are generally not public record.

If the personal email is submitted to the agency, it becomes a public record. Example: A school board member forwards

a personal email message received from a neighbor to the superintendent’s school email account and asks the superintendent to address the issue.

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Access to Public Records ActUse of Technology

Email messages must be available for inspection and copying by the public agency unless an exception to disclosure, based on the content of the message, applies.

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Access to Public Records ActBasics

Exemptions to disclosure (I.C. § 5-14-3-4) Section 4(a) categories are confidential

Declared confidential by state statute Required to be kept confidential by federal

law (e.g. FERPA) Patient medical records created by a

provider Declared confidential by rule adopted by

Indiana supreme court (Admin. Rule 9)

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Access to Public Records ActBasics Section 4(b) are discretionary

categories Investigatory records of law enforcement Attorney work product Personnel file information, except for

information that must be disclosed Intra- or interagency deliberative

materials – expression of opinion or speculative in nature and communicated for purpose of decision making

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Electronic mail communication and meetings of governing bodies Electronic mail

Members of governing body must be cautious in use of email when it is used between and among members to conduct official business; while email communication may not be a meeting, many of the messages will be public records.

Indiana courts have not addressed the issue of email communication as a meeting, but the Virginia high court ruled that email communications did not constitute a meeting. Beck v. Shelton, 593 S.E.2d 195 (Va. 2004). Email communication lacked simultaneity.

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Contact Information Public Access Counselor

402 West Washington Street, W470Indianapolis 46204

Fax: 317.233.3091 Phone: 317.234.0906 Website: www.in.gov/pac

Commission on Public Records 402 West Washington Street, W472

Indianapolis 46204 Phone: 317.232.3380 Fax: 317.233.1713 Website: www.in.gov/icpr