To Delete or Not to Delete: E-Mail Policies

November 18, 2010 – Iowa State Association of Counties

REBECCA A. BROMMELBrownWinick

666 Grand Avenue, Suite 2000Des Moines, IA 50309-2510Telephone: 515-242-2452Facsimile: 515-323-8552

E-mail: brommel@brownwinick.com

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E-Mail Policies GenerallyE-Mail Policies Generally

• Develop a policy that instructs employees • Policy should include information on:

– Use of work e-mail account– Use of personal e-mail account at work– How and what e-mails should be retained– Penalties for not following policy

• Should be related to general document retention policy

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E-Mail “Don’ts”E-Mail “Don’ts”• Don’t use slang, cursing, slander, pornography, “smart” remarks

or jokes• Don’t use casual comments that could later be misconstrued• Don’t e-mail “inside” jokes or nicknames or use derogatory

nicknames when referring to others• Don’t email when you are angry or upset• Don’t say things in an e-mail that you wouldn’t generally say in a

formal letter• Don’t send copies to others unless necessary

• Don’t comment on any pending litigation, expected lawsuits or events that have occurred that may lead to litigation

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1. Do I want to see this in a newspaper?

2. Would I feel comfortable reading this e-mail from the witness stand in front of a jury?

If the answer is NO, don’t hit send or don’t write it at all.

Before you send an e-mail, ask Before you send an e-mail, ask yourself these two questions:yourself these two questions:

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• Example: 1 email to 3 parties, all 3 parties reply = 20 copies on the email system

• “Delete” does not remove an email from the server

• Reason for needing a consistent policy – so every employee does the same thing with the same email string

E-mails grow like mold and they E-mails grow like mold and they don’t go away easily!don’t go away easily!

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To Delete or Not to Delete – To Delete or Not to Delete – That is the QuestionThat is the Question

• Retention is based upon the subject matter of the e-mail

• Policy cannot simply group all e-mails together

• Considerations: – public records requirements– manner of maintaining and organizing emails– litigation holds

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Iowa Code Chapter 22 – Iowa Code Chapter 22 – Public or Open Records LawPublic or Open Records Law

• Need to know and understand how this affects your particular office

• Additional issue that a private business does not have when developing a document retention or e-mail policy

• Deciding whether to keep or delete an email is important, because if you delete an e-mail that is a public record, it may not be as readily available for the public examination allowed under the Iowa Code

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Public Records - DefinedPublic Records - Defined

• “Public Record” is defined as “all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state, or any county, city, township, school corporation, political subdivision…”

• “Public Records” also include all records relating to the investment of public funds, including investment policies, instructions, trading orders or contracts, whether they are held by the public body responsible for the funds or by a fiduciary or other third party

• In other words, e-mails from government e-mail accounts are public records unless an exception applies

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Public Records – ExaminationPublic Records – Examination• Public must be allowed access to all public

records, unless it fits under one of the exceptions

• This means that e-mails also need to be available for public inspection

• Should decide how and where these emails will be kept and do it consistently– print them off and save hard copies by subject matter– save them electronically into folders by subject matter– educate and train employees to ensure consistency

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Public Records – ExceptionsPublic Records – Exceptions

• Over 60 specific records that are deemed “confidential” by statute

• If an e-mail relates to a subject that is given confidential treatment, then it would also be confidential and thus, not subject to public review

• May be other reasons, however, for maintaining the e-mail for certain periods of time (i.e.: “normal” document retention periods)

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Public Records – Public Records – Relevant ExceptionsRelevant Exceptions

• Trade secrets• Records that represent and constitute work

product of an attorney, which is related to litigation or claim made by or against a public body

• Peace officers’ investigative reports and specific portions of e-mail and telephone billing records of law enforcement agencies if part of an ongoing investigation– except where disclosure is otherwise authorized– emails and phone records only confidential until

commencement of prosecution or finding of an indictment

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Public Records – Public Records – Relevant Exceptions (con’t)Relevant Exceptions (con’t)

• Reports to government agencies which would give advantage to competitors and serve no public purpose

• Appraisals or appraisal information re: the purchase of real or personal property for public purposes

• Information to local board of health or health department which identifies person infected with reportable disease

• Records of identity of owners of public bonds or obligations

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Public Records – Public Records – Relevant Exceptions (con’t)Relevant Exceptions (con’t)

• Communications NOT required by law, rule, procedure or contract that are made to government body or to any employees by identified persons OUTSIDE of government– Important exclusion for e-mail communications with non-government

individuals– Note that persons or employees of persons who have a consulting or

contractual relationship or have a compensation arrangement with a government body are considered to be “inside” government for this exception

– Person on the outside of government can consent to having communication treated as public record

– Information in the communication is public record to extent it can be disclosed without directly or indirectly indicating the identity of the person outside of government involved in the communication

– Even if from outside person, it’s a public record if it gives a date, time, specific location and facts and circumstances related to a crime or other illegal act (unless it plainly and seriously would jeopardize a continuing investigation)

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Public Records – Public Records – Relevant Exceptions (con’t)Relevant Exceptions (con’t)

• Examinations for law enforcement officer candidates administered by the governmental body

• Applications, reports and case records of individuals seeking county general assistance

• Confidential information and info held by mediator in work comp actions

• Information re: security procedures and emergency preparedness information, if it would jeopardize the employees, visitors, persons or property it seeks to protect

• Certain information related to housing assistance (SSN, financial history, medical records, current address if civil or criminal restraining order in place)

• Information in a record that would permit governmental body to hold a closed session, until such time as final action is taken on the subject matter of that information.– must take final action within 90 days of discovery of the record– burden on government to show that action could not be taken in 90 days

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Other Considerations for Other Considerations for E-Mail RetentionE-Mail Retention

• Certain retention periods are related to statute of limitations on legal actions (i.e.: 10 years for contracts; 5 years for injuries to property; employment law-related periods)

• Certain retention periods are related to federal law requirements (i.e.: OSHA, environmental spills, etc.)

• Each area of the county may need different document retention periods, although the county could have a general, overall e-mail use and retention policy

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““Litigation Holds”Litigation Holds”

• All document retention policies (and any related or independent e-mail policy) should have a section on litigation holds

• “Stop destruction” order that is put in place when litigation is “reasonably foreseeable”

• Only “holds” information related to the expected or existing litigation

• Continues until litigation is completely over

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““Litigation Holds” – When is Litigation Holds” – When is litigation “reasonably foreseeable”?litigation “reasonably foreseeable”?• Demand letter from a potential plaintiff• Request for information from potential plaintiff or

his/her attorney• Legitimate verbal threat of litigation• Initiation of an investigation by law enforcement

or other agency• Receipt of a subpoena for documents or other

information (may just be a witness)• Formal employee complaints to management• Incident occurs where a personal or property

injury has occurred• Receipt of lawsuit

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What happens if I delete or refuse What happens if I delete or refuse to make public records available?to make public records available?

• Public records statute provides for relief and penalties• Injunctive relief requiring compliance• $100 to $500 (some good faith limitations)• Payment of reasonable attorney fees and costs to

plaintiff• Can be removed from office if prior violation with

damages assessed• Can also seek criminal enforcement• NOTE: Ignorance of the public records law is not a

defense. If in doubt, ask the Attorney General for an opinion.

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What happens if I delete or refuse to What happens if I delete or refuse to make public records available? (con’t)make public records available? (con’t)

• If it is in the context of litigation – SPOILIATION• Spoliation = breach of duty to preserve evidence• If breach of duty is found, then there are

sanctions that can be assessed against that party to the litigation

• Most common – adverse inference jury instruction

• Also, payment of fees and expenses, finding of liability or other finding against offending party, not allowing introduction of other evidence, etc.

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Examples of “E-Trouble”Examples of “E-Trouble”• “Tinkerbell”

• Forwarding of the crude joke or video

• Using for personal dating service emails

• “Let’s play to win…I want to have two Ferrari’s by Christmas”

• “Stop shredding” (the Enron example)

Source: www.law.com, J. Lifschitz & J. McMichael, “Loose E-Mails Sink Litigation” (10/01/2010)

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ResourcesResources • Iowa Code chapter 22:

http://coolice.legis.state.ia.us/Cool-ICE/default.asp?category=billinfo&service=IowaCode

• Attorney General “Sunshine Advisories”: http://www.state.ia.us/government/ag/sunshine_advisories/

• Iowa State Records Commission: http://www.iowasrc.org/

• Example policy from Kentucky:http://www.kdla.ky.gov/recmanagement/emailguidelines.pdf

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Website: www.brownwinick.comToll Free Phone Number: 1-888-282-3515

OFFICE LOCATIONS:

666 Grand Avenue, Suite 2000Des Moines, Iowa 50309-2510

Telephone: (515) 242-2400Facsimile: (515) 283-0231

616 Franklin PlacePella, Iowa 50219

Telephone: (641) 628-4513Facsimile: (641) 628-8494