Email Record Purge | Government’s Destruction Urge

For the leaders of a public institution, email records can feel like a nuisance.  The records can be discoverable under Freedom of Information Act (FOIA).  FOIA can deliver records to activists, journalists and political adversaries.

Often, the public scrutiny enabled by FOIAed email makes the institution’s leaders cringe.

So leaders are tempted to compress the time that emails are retained.  For example, North County Transit District in California (NTDC) just changed its default email retention policy from two years to 60 days.

But quick destruction of email
Electronic Mail
as Asset
contradicts two urgencies in modern society:  the yearning for institutional transparency and accountability and the ever-rising value of electronic records.


Transparency: Either Embrace It, Or It Will Be Forced Upon You

As Don Tapscott taught in his 2003 book The Naked Corporation, technology makes secrets harder and harder to keep.  (Think WikiLeaks and Edward Snowden.) Our hyper-networked society expects ability to scrutinize the activities and decisions of publicly-accountable institutions.  One key to satisfying that expectation is recorded email.

But when institutional email records are destroyed quickly, the public senses something important is being hidden.  The destruction fosters mistrust.  It motivates watchdogs to investigate harder.  It motivates whistleblowers to find records, hoard them and leak them.

Where's the Accountability If Records Disappear?

Spoliation and obstruction-of-justice laws require that records be preserved if an institution has reason to believe they will be needed in a lawsuit or government investigation.  These laws help make an institution accountability for its actions.

To comply with these laws, an institution must  implement an effective “litigation hold” on records like email.  It must take affirmative steps to prevent destruction of the records.

In practice, however, litigation hold is difficult to implement.  It requires much attention and discipline on the part of employees.

One way to help comply with the requirement for litigation hold is to adopt a generous record retention policy, where emails are retained for a long time.  A generous policy gives the institution a margin for error.

No such margin for error exists when an institution adopts a policy to destroy email quickly.

Email Records as Institutional Asset

If an enterprise destroys email quickly, then employees will hoard copies of their emails.  Fearing that they will be unable to remember or prove important communications, they will hoard copies of bulk email, contrary to official policy.  They will stash bulk copies of email on flash drives or in external storage lockers like Dropbox.

Email records are a critical asset that serves an institution beyond the tenure of particular employees or executives.  Email records document internal control within the institution and contract obligations outside the institution.

How Will Employees Behave?

NCTD argues it will address the foregoing issues by training employees to read every one of their emails and decide, on an email-by-email basis, which to keep, which category to keep it in and which to destroy.

I am skeptical of NCTD’s argument.

For years institutions have been trying to train employees to behave this way.  I have never seen a case study demonstrating that this training is effective in practice.  Have you?

–Benjamin Wright