Government records: it's the message, not the medium: governments--well, some anyway--are starting to figure out what records managers have known all along: Information pertaining to business is a record, whether it was created on or delivered to an office computer or a staff member's personal PDA.

• Author: Swartz, Nikki
• Position: ON THE EDGE: The Use & Misuse of Information

Today, records can take almost any form--from written text on paper to an electronic text message. Courts have determined that what makes a record a record all depends on what's in the message itself, not on what media it was created or how it was delivered. A document containing government business is no less a record because it was communicated via e-mail rather than interoffice mail. And a record containing government business is still a public record whether it was created using a government official's private Hot-mail account or a government-owned Outlook account.

Many businesses have gotten the message--but governments are still awakening to the idea of properly managing e-mail. Recently, courts, the media, and the public have been dragging state, local, and even federal governments, into the 21st century--sometimes kicking and screaming--by mandating that electronic messages discussing government business communicated via computers, personal data assistants, and cell phones are, in fact, records that, in most cases, should be public.

While businesses already have become painfully aware of the fact that electronically stored information (ESI) is "discoverable" in court, governments and government officials seemingly are just beginning to realize that their communications, in whatever media, are also subject to prevailing local, state, and federal public records' laws.

Three recent high-profile examples reveal the extent to which governments are grappling with the fact that public records can indeed take electronic form, and e-mails addressing government business--even those composed using private accounts--must be properly managed and preserved.

Save Those Government E-mails

Missouri Gov. Matt Blunt and his administration are currently under investigation by the state attorney general for possibly destroying public records in the form of e-mails. The problem is the governor apparently does not consider e-mails--government or private--worthy of retention at all.

It began in September 2007, when a Springfield News-Leader columnist obtained a copy of an e-mail from Blunt's chief of staff, Ed Martin, to antiabortion groups discussing an attack on Attorney General lay Nixon, Blunt's probable opponent for governor in the 2008 general election.

According to The Kansas City Star, the columnist asked for copies of all of Martin's e-mails to determine how often he was using state resources for political purposes. Blunt's office, apparently unaware that the columnist already had one of the e-mails, said none existed. Blunt's staff later admitted to routinely deleting e-mail messages, despite a state records retention policy--signed by Blunt himself in 2001 when he was secretary of state--that requires such documentation to be retained for at least three years.

According to the St. Louis Post-Dispatch, however, Blunt suggested in mid-September that e-mails are not public records and do not have to be retained for three years like public records. "Nobody saves e-mails for three years," he told the newspaper.

Also in September, Blunt fired a staff attorney, Scott Eckersley. The Blunt administration said Eckersley was let go "for cause," but Eckersley contends that he was fired because he challenged Blunt's position on e-mall retention and warned the governor's staff that state law requires them to save e-mails. Blunt's staff said Eckersley never told them to retain e-mails.

Ironically, an e-mail memo dated September 14 surfaced in November that supports Eckersley's claims. In the memo, obtained by the Associated Press (AP), Eckersley wrote "e-mails can be 'public documents.'" The memo also noted that the records-retention policy Blunt had signed in 2001...