This guest post is by ELGL member Don DeLoach. Don has more than 32 years of state and local government involvement. He was the former Chief Information Systems Officer for the City of Tallahassee, and was responsible for all of the city’s technology needs.
He is also a former president of the Florida Local Government Information Systems Association, and a former member of the board of directors for Public Technology Institute.
There’s a popular myth among government organizations that if you don’t physically retain electronic communications, you can’t get in trouble for failing to produce them. That assumption is blatantly false.
Electronic records always leave a footprint, and losing or deleting communications doesn’t relieve agencies of their responsibility to respond to records requests. All content is important, but electronic communications such as business-related social media posts, websites, emails, and text messages are increasingly requested by the public under open records laws.
All these types of communications should be considered public records and must be retained. Specific recordkeeping requirements may vary by state, but all agencies are obligated to have a system in place to search for and present requested records under the federal Freedom of Information Act (FOIA).
One point agencies must be aware of is the difference between transitory messages and business-related communications. Transitory messages are personal in nature, even though they happen on the corporate network—such as inviting an employee to lunch. However, emailing a working lunch invitation to colleagues to discuss a specific project is classified as a business-related communication that can be considered a public record. At times, there is a gray area where these two types of communications may overlap, so it’s a best practice to retain both for later searches and reviews as needed.
It’s unfortunate that many agencies rely on administrative staff or multiple records managers to decide which communications need to be retained, and where and how they should be stored. This manual and inefficient process can quickly lead to the loss or destruction of records that may later be required during a public records request or e-discovery process.
Relying on manual processes for archiving can introduce unintended problems. Although it may seem cost effective to store copies in file cabinets and hard drives throughout multiple departments, it becomes a big challenge to track down all the information needed to recreate a complete conversation when responding to a public records request.
Manual processes also create a backlog of responsibilities for administrative, IT, or legal staff who may be reallocated from their regular duties to produce records—making it difficult to attend to other organizational priorities.
Automated Archiving Can Ensure Proper Retention
For all these reasons, it’s my opinion that it’s essential to invest in a technology solution that automatically archives electronic communications for your organization, including (but not limited to) emails, social media posts, instant messages, and text messages. The solution should allow your designated records managers to search for and find information quickly—without placing an undue strain on internal resources. It should also greatly reduce the time, effort, and cost required for your organization to respond to records or e-discovery requests.
Remember, records must be stored fully intact and remain unaltered when presented. In other words, records that are produced for review should look exactly as they did when they were shared. This means all your electronic communications—transitory, business-related, and all points in between—must be archived.
An automated archiving platform can serve as the foundation that allows you to respond to requests and produce records with confidence. Without such a platform, a failure to produce records may lead to fines and sanctions if FOIA and local laws are violated. Another problem stemming from inadequate records retention involves a breakdown in trust between an agency and its public.
All messages must remain fully intact and unaltered to comply with FOIA and local laws. Avoid archiving solutions that flatten communications into an email-like format, because that removes the functionality of embedded links or images that may lead to other resources or pertinent information. Modern cloud-based systems such as the archiving platform from Smarsh can preserve all types of e-communications in their original formats, allowing users to add new types of digital communications content as they emerge.
The two greatest obstacles for public sector are the same as any other industry: time and money. An automated solution reduces the number of people involved and the time required to respond to record requests or e-discovery.
Automated archiving makes the IT team happy when the technology has a hosted environment and vendor solution, not an in-house tool that depends on the team to manage. In this way, implementation will not upset the current workflow of the organization because it can be done in the background, rather than causing IT to work weekends or spend hours walking from desk to desk.
It’s critical that any solution reduces the time needed to get from request to response, and relieves the burden from IT—or whomever is responsible for managing the process. A powerful search function and the ability to produce content in its original format is great, but if the technology itself is cumbersome or difficult to use, you may damage organizational buy-in which can create additional obstacles for your agency.
ELGL Board Member.
Speaker. Author. Advisor.