This an excellent question that has been discussed in detail on the records management list serve, professional associations, and the information management technology sector based on the new federal rules on discovery that was implemented in December of 2006.
Now I am neither a lawyer nor in the information technology (IT) area, but simply a records management practitioner who has thoughts on the requirement as follows:
It is my understanding that the management of business records is guided by legal consideration, i.e., a legal citation approved by competent authority (federal, state, etc.). I am only aware of but one legal requirement for the retention of email and that is for a specific group of individuals governed by the SEC. Therefore I must assume there is no other legal precedent for the retention of email messages unless it meets the criteria of being a business record and/or public record, then it must be retained.
The more complex issue is the methodology of managing the email message that is deemed a business record and must be maintained. There is much vendor hype extolling their software that will provide the means to ensure long term requirements and retrieval of email that maybe required in case of litigation. To be sure I am convinced that they have developed a product that will manage the email. But I am also convinced that there are two major factors that will cause a breakdown and ultimate failure of the overall goal of managing email. Factors are:
a. The Human Factor. To apply the appropriate retention to each message will require someone to apply it as the current technology to automate the process does not appear to be 100 percent accurate. If we are believe the individual receiving the message, i.e., say a upper level manager, CEO, etc., will apply retention to every email they receive I do not hesitate to say if you believe it I have some property in Florida that I will be happy to sell you, just bring high waterproof boots.
b. The Technology Factor. While you may be able to manage retain all email for a specific period of time by simply retaining copies of all email coming and going out of the organization the advancement of technology has created an environment that manages to thwart control of information within an organization. Much of which is beyond the control of the IT function. Email is being sent and retained Blackberries, IPAQ’s, TREO’s, personal computers, personal email accounts (hotmail, Gmail, etc.), flash drives and cell phones that makes control difficult, if not impossible.
I happen to conduct business in a state that has a very progressive and what I consider providing excellent guidance and training to state and local government agencies. I have quoted below their description of “Electronic Mail” that provides a legal framework for local government agencies and although not a legal authority as least some guidance to those working in the private sector.
Quote: “Electronic mail (E-mail): E-mail is primarily a communication system. Individual E-mail messages may be public records with legally mandated retention requirements, or may be information with no retention value. E-mail messages are public records when they are created or received in the transaction of public business and retained as evidence of official policies, actions, decisions, or transactions. Such messages must be identified, filed, and retained just like records in other format."
Currently few E-mail systems are designed to categorize and retain information. E-mail messages with public record content should be retained in E-mail format only as long as they are being worked on or distributed. Upon completion, E-mail messages containing public record information should be printed out or transferred to an electronic document management system, filed with the appropriate records series, and retained for the minimum retention period assigned by the Local Government General Records Retention Schedule or a records retention schedule approved specifically for the agency by the Local Records Committee”. Unquote. Citation: Line 314, Local Government General Records Retention Schedule for the State of Washington.
While the solution of printing out the business documents may be distasteful to some it is probably the only solution for the majority of local government agencies and the private sector that does not have or cannot afford the luxury of an electronic document management system. You might wish to research what guidance your state has to offer on the subject of retention of “Electronic Email”.
The management of email is a difficult issue that requires the organization (public or private) to provide the proper guidance and ongoing training to their employees on their responsibilities for the management of their email within the organization.
