Automatically deleting email after 90 days could lead to the accidental disposal of important records, as the Cuomo administration presses ahead with its controversial new policy.
The Cuomo administration last week fully implemented a policy of deleting any email not proactively saved for retention after 90 days. The result was a mass purge of messages in the inboxes of rank-and-file employees.
“With respect to a records retention policy, my belief is the nature of the communication and its significance should determine how long it should be kept, and there likely should not be an arbitrary dividing line between retention and disposal,” Robert Freeman, head of New York's Committee on Open Government, said. “In 2015, in the era of electronic communications—particularly email—often all of us receive email communications that are indeed significant, which likely warrant a retention period of greater than 90 days. Realistically, let's face it: mistakes are made. Sometimes if there is an automatic obliteration of records, we may lose materials that are indeed important, that have historical value, and again, there may be situations in which we cannot necessarily predict the significance of the record.”
The official state policy was adopted in June 2013, but gubernatorial administrations have been automatically purging their inboxes going back six years, aides to Governor Andrew Cuomo say.
“This policy has been in place at the Executive Chamber since 2007 and the records retention policy that goes with it is clear, as well as consistent with State Archives guidelines,” Cuomo spokesman Rich Azzopardi said in an emailed statement. “As Mr. Freeman previously said, that’s key.”
Official guidelines for employees say they should flag materials related to the awarding of state contracts or development of policies for further retention. Documents or emails that are subject to Freedom of Information Law requests are to be preserved, as are records placed on hold because of litigation.
Nonetheless, the Cuomo administration automatically deleted emails that had been sought under FOIL in the summer of 2013 that related to a controversially named food cart that was banned from the Saratoga Race Course and Empire State Plaza in Albany.
Owners of the cart sued the state and are now asking a federal judge to sanction the state for “spoliation” of emails sent by former Cuomo adviser Bennet Liebman to officials in the executive chamber.
State legislators are drafting bills that would establish a different retention schedule for various records or mandate their preservation for at least five years.
Saving emails is something of a double-edged sword. There are plenty of worthless government records, a message slip from a call that has been returned, and have no value going forward.
In the mid-90's, the lawyers for the company where I was the acting COO and CIO, ask the I.T. department to delete emails after a certain time, using saving space on our servers and backup systems, as the reason.
Today, the eDiscovery industry is thriving.
Electronic discovery, or eDiscovery, refers to discovery in litigation or government investigations which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). This is data subject to local rules and agreed-upon processes, and are often reviewed for privilege and relevance before being turned over to opposing counsel.
Data are identified as potentially relevant by attorneys and placed on legal hold. Evidence is then extracted and analyzed using digital forensic procedures, and is reviewed using a document review platform. Documents can be reviewed either as native files or after a conversion to PDF or TIFF form. A document review platform is useful for its ability to aggregate and search large quantities of ESI.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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