GENERAL LETTER 98-1 (Revision of GL 95-1)

ELECTRONIC AND VOICE MAIL
A MANAGEMENT AND RETENTION GUIDE FOR STATE AND MUNICIPAL GOVERNMENT AGENCIES

Introduction

The Office of the Public Records Administrator and State Archives issues this statement under authority granted it by Sections 11-8, 11-8a and 7-109 of the Connecticut General Statutes.

Definition

E-mail is a means of sending messages between computers using a computer network or over a modem connected to a telephone line. This information consists primarily of messages, but may also include attachments such as calendars, directories, distribution lists, word-processing documents, spreadsheets, and other electronic documents. E-mail is stored in a digital format rather than on paper and is retrievable at a future date. Due to format, E-mail permits instant communication and transmittal of up-to-date information similar to the telephone. Unlike current telephone features, E-mail creates a record of the information that is being transmitted.

E-mail and Public Records

When deciding what to do with E-mail messages, it is important to remember the statutory definition of public records found in section 1-18a of the Connecticut General Statutes.

Any recorded data or information relating to the conduct of the public's business prepared, owned, used, or received by a public agency, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any method. (Italics added.)

A message sent or received by E-mail in the conduct of public business is a public record.

Retention Guidelines

E-mail messages sent and received by public officials fall within three broad categories:

1. Transitory messages, including copies posted to several persons and casual and routine communications similar to telephone conversations.
2. Public records with a less than Permanent retention period; and
3. Public records with a Permanent or Permanent/Archival retention period.

Retention guidelines for each of these categories are as follows:

1. Transitory messages-No retention requirement. Public officials and employees receiving such communications may delete them immediately without obtaining the approval of the Office of the Public Records Administration and State Archives.
2. Less than Permanent- Follow retention period for equivalent hard copy records as specified in an approved retention schedule. The record must be in hard copy or electronic format which can which can be retrieved and interpreted for the legal retention period. When there is a doubt about the retrievability of an electronic record over the life span of that record, the record should be printed out. Municipalities and state-agency officials may delete or destroy the records only after receiving signed approval from the Office of the Public Records Administrator.
3. Permanent or Permanent/Archival-Retention may be in the form of a hard-copy printout or microfilm that meets microfilm standards issued in GL 96-2. The information must be eye readable without interpretation.

State and local government officials/supervisors and State Agency Records Management Liaison Officers are responsible for instructing their employees in determining which E-mail messages fall in each of the three categories, in using retention schedules and in securing approval for destruction. Depending upon the function of the public record being generated by E-mail, state agencies and municipalities may take steps to institute procedures for routinely printing E-mail records, including all transmission and receipt data in the system, and filing the printouts in the normal course of business.

Legal Considerations

Disclosure of e-mail: Public officials and employees should keep in mind that E-mail messages sent as part of their workdays are not "private" but are discoverable communications and may be subject to FOI. Since messages may be retained at different locations or levels of the system, users must remember that their communication can be retrieved during formal discovery processes. Discretion, therefore, is an important consideration when using this or any other new technology to send, record and/or retain communications.

Confidentiality of e-mail: Electronically transmitted information travels though many networks, and many different computer connections. Unless encrypted, this information is not secure, and should not be considered private. Agencies are advised of the risk involved in using e-mail to deal with confidential issues.

Agencies must be aware of all applicable statutory or regulatory requirements that would prohibit the disclosure of certain information in any format. Of special concern is the confidentiality of individually identifiable health and personnel information. Agencies must be aware of this when transmitting this information by any method of communication, including e-mail, voice, or written communications.

Legal Signatures: Some records may require original signatures. Agencies must be aware of any state or federal laws that would effect the way a document is signed. As of the date of this general letter, there is only one statute in Connecticut that specifically covers electronic signatures. Section 19a-25a of the Connecticut General Statutes authorizes the use of electronic signature for medical records.

This does not mean that electronic signature may not be used to transact other types of business, but it is suggested that you consult with legal counsel first.

Voice Mail

Voice mail (including answering machines) can be considered a type of electronic mail communication. In this case, the message is recorded in an audible rather than a visible format.

Voice mail is transitory in nature, and may be deleted at will. There are times, however, where voice mail or answering machine messages may require a longer retention period. This would be in the case where the message may be potentially used as evidence in a trial, such as a bomb threat, or in some other illegal activity. Voice mail may also be subject to the discovery process in litigation.

Conclusion

E-mail is a rapidly evolving technology that has attracted the attention of the courts. This office will monitor this changing technology and will communicate with state and municipal agencies on implications for Connecticut's public records.