This article is the result of a collaboration between three superintendents from Ohio and a school district lawyer. In planning for a presentation at the Ohio School Boards Association’s Capital Conference in November, the four men—Daniel Keenan, Westlake City Schools’ superintendent; Clinton Keener, Bay Village City School District’s superintendent; Michael Shoaf, Rocky River City School District’s superintendent; and Daniel McIntyre, a partner at Brindza McIntyre & Seed in Cleveland—realized that their work could be helpful to school administrators in other states who are addressing electronic records policies in their own districts.
Since the Supreme Court approved a 2006 amendment to the Federal Rules of Civil Procedure requiring public entities such as school districts to produce electronically stored public records during the “discovery process” in lawsuits, maintaining such records, especially e-mail messages, has been an ongoing obligation for district leaders. While they strive to be responsive to public records requests, they can easily get bogged down in addressing such requests. To meet this challenge, district leaders need to develop policies and practices to manage their electronic records so that relevant documents can be accessed quickly; otherwise they face the risk and expense associated with noncompliance.
Administrators need to take the lead with school board members and community stakeholders in developing policies to address electronic documents under the public records law. They must review applicable public records law and develop legally compliant procedures for organizing, saving and retrieving electronic records in the event of a request.
Westlake City Schools in Ohio learned this lesson the hard way recently. The district received a request for e-mail sent or received over a three-year period relating to the high school’s softball program. District staff were forced to sort through thousands of e-mail messages that were potentially subject to disclosure. In the aftermath of responding to this voluminous request, administrators revamped the district’s approach to handling electronic records.
Legal Principles and Policy
Electronic documents, e-mail messages, videos, maps, blueprints, photographs, voice mail messages in some jurisdictions, or items stored on any other medium (e.g., computer drives, data discs and microfilm) may be public records. It is the content, not the medium, that makes a document a record of a public office. E-mails that fall into one of the following categories are generally not subject to disclosure: medical records; security and infrastructure records; records pertaining to adoption, probation, parole proceedings, or attempts by unmarried minors to seek court permission for abortion; trial preparation records; records pertaining to the recreational activities of a minor; and records the release of which is prohibited by state or federal law, including student records and trade secrets.
From state to state, it is a fundamental requirement that public records be maintained in such a way that they can be made available for disclosure and inspection promptly, usually within five days. Courts have routinely held that if there is evidence electronic records have been deleted in violation of a public office’s records retention and disposition schedule, the office must recover the contents of deleted e-mails and provide access to them. This is often accomplished through the use of a forensic computer professional, who can review the content of the PC or server and retrieve deleted files. While an e-mail may have been deleted from a user’s inbox, it often continues to exist on the hard drive. But this is no excuse for noncompliance, especially given the costs associated with the work of the forensic computer professional and potential court-awarded damages.
In determining how long a record must be maintained, you must first identify the content of the record. Just as a school district cannot treat all paper or microfilm records the same way regardless of their content, a district cannot simply schedule e-mail as a single record category for the purposes of retention. For example, if your district retains employment contracts for 10 years as part of the personnel category of records, you will need to maintain any employment contract in electronic form for the same period of time. As a general matter, it would not be permissible to create a new category of records entitled “electronic records” or “e-mail.” The content of an electronic document determines whether or not it is a public record and the district’s corresponding retention obligation.
An appropriate electronic records policy must provide in plain terms the definition of electronic records and charge each employee who may create or receive electronic records with the responsibility of retaining and organizing these records in accordance with the district’s retention schedule. But just as importantly, the policy must contain specific procedures to permit employees to meet their obligations. This typically involves online, near-line and offline storage systems. For e-mail, online storage involves maintaining documents in an e-mail system’s inbox, outbox or similar folder. Near-line storage involves the removal of e-mails from the e-mail system and saving them, for example, to a local hard drive, while offline storage is the filing of e-mails in a nonelectronic format.
After a school board adopts a public records policy, district officials must communicate the policy to all stakeholders. Noncompliance with policy requirements because of misinformation is not an acceptable excuse when addressing public records complaints.
Westlake City Schools’ request for e-mails regarding the high school softball program stemmed from a parent concern about a coaching decision. The district was asked to provide all e-mails pertaining to the softball team over three years. These e-mails concerned lineups, practice schedules, competition schedules, games, statistics and coaching decisions. Faced with this request for such a voluminous amount of information, district officials realized they lacked a mechanism to track e-mail public records. They resorted to using the keyword “softball” and wound up with over 2,000 messages. After a laborious sorting process, fewer than 10 messages were determined to be relevant records per the request. This ordeal resulted in a reassessment of how the district’s e-mail is stored and organized.
Westlake officials decided upon a three-part procedure: (1) inform employees and board members of current policy and of what constitutes a public record, (2) develop a straightforward system to sort e-mail so it could be more easily searched when records were requested, and (3) train users more effectively. A Web-based policy notice was developed for faculty, staff, administrators and board members. Knowing that these stakeholders have to deal with many policies, officials specifically sent the e-mail retention policy using the district’s online professional development tool and requested that recipients sign off on it. Once the policy was communicated clearly, the need for an easy-to-use system of retention was more apparent to them.
The district’s director of human resources worked with the technology coordinator to set up a practice most districts can easily replicate. They created three folders (nonrecords, transient records and permanent records) for messages within Microsoft Outlook so employees could sort and store messages easily and appropriately. An online training module was then developed to help employees use the new system. Now they will be asked to complete the module as part of their in-district staff development and then to sort e-mail according to the district system.
Retaining and Retrieving Records
Retaining and retrieving public records, particularly electronic records, requires a systemic process to ensure compliance. Records are retained in many forms at Bay Village City School District. The district policy for public records includes a list of all required records and the period of time each must be retained. Some are retained in paper form, but most are now retained in electronic form. Despite generating thousands of e-mails every week, until recently district employees did not have a central location for saving e-mails. Instead, e-mails were stored on individual hard drives—a potential nightmare for district employees in the event of a large public records request.
Before the start of the 2009-2010 school year, the district implemented an archive and retrieval system for e-mail. Through an outside vendor, the system retains all e-mail entering the district and all e-mail produced within the district. Every year the district’s records retention committee meets and approves destroying dated records in accordance with Ohio public records law. The committee approves destroying certain e-mails created and saved more than two years previous to the committee meeting. Any e-mail that needs to be retained for more than two years must be copied and placed in the appropriate file.
A few times each year a member of the public will make a public records request that includes e-mail. A staff member can retrieve all e-mail related to the request. For requests with a limited number of related e-mails, the staff member will save the e-mails in a computer file and then forward the file to the person making the request (photocopy, e-mail attachment, or CD—whichever format the person prefers). In some cases there may be a large volume of related e-mails in the archive. Many of the e-mails retrieved may not be required to be retained as public records. A staff member will then review all e-mails found during the search and will copy only the e-mails that constitute a public record. Should the staff member give a large volume of e-mails that are not related to the request, the district could be accused of trying to bury the member of the public in his or her own request.
The Rocky River City School District’s retention and recovery system includes a district e-mail server for storing electronic records. E-mails are fully indexed by message content and attachments, with the option to add tags for customized searches. The archive search tool located in the Web user interface conducts full-text searches based on tags or message content. Users can easily search personal e-mail archives, view e-mails in the archive, and forward e-mails to active mailboxes.
The information technology director can access the server and retrieve relevant records quickly. Paper records are retrieved via traditional—and more time-consuming—means. “We now have the ability to retrieve archived e-mail records electronically and are exploring options for storing and retrieving other types of records in a like manner. Our goal is to achieve, to the greatest extent possible, a paperless system for storage and retrieval of all records in the district,” says Dianna Foley, Rocky River’s coordinator of communications and technology.
The content of an e-mail message determines, first, whether it is a public record and, second, the district’s corresponding retention obligation. Developing a school board policy that reflects and describes applicable requirements for storing and organizing electronic records is critical to meeting public records obligations. School district leaders need to ensure that all stakeholders are aware of and properly trained in the district’s electronic records policy. Implementing specific procedures for electronic records retention will provide school leaders and staff with a greater opportunity to meet the challenges associated with electronic records.