Board of Ed email policy: Easy as it seems?

Devising adequate email policies may not be so easy.

Days before Plainfield's Board of Ed election, candidate Renata Hernandez (now Board member-elect) posted to her personal blog (see here) on the matter of a policy proposal on the April 13 BOE agenda --

Embedded in the Agenda from last Tuesday was the revamping/creation of Policy number 4119.26/4219.26.

If we followed normal procedures this would not even be entertained until the NEW Board gets seated. However, if a special meeting is called prior to the swearing in this could certainly be approved by this rubberstamping rag-tag bunch.

Board Members -- Industry-wide Best Practices: Personal Emails are deleted after 1 Year and HR Records are maintained for at least 15 years.

On Election Day itself (4/20), Plainfield Today got the following anonymous comment, not posted online as it was not germane to the topic that day --

You are forgetting about the most recent policy that went to first read, the deletion of e-mails. That is a violation of the records retention law. There are too many lawsuits the district is currently involved in, and to delete all e-mails shows there is something to hide, and, oh yeah, it's illegal.

The commenter is remarking on the same matter as Ms. Hernandez, listed on the April 13 agenda as '4119.26/4219.26: Staff Use of Internet Social Networks and Other Forms of Electronic Communication' (see page 49 of the agenda, which can be found here - PDF).

While Ms. Hernandez is worried that policy might be acted upon before she is seated on the Board, I don't believe that is likely (and a policy matter would not qualify for the closed session slated for April 27th).

The matter of whether the policy is 'illegal' as the commenter says or does not comport with 'industry-wide best practices' as Ms. Hernandez holds needs to be looked at more closely.

Any discussion of email retention by a public body, such as the Board of Education, must begin with the policy position of the State of New Jersey.

At present, that policy is framed by the Division of Archives and Records Management (DARM) and is known as 'Circular Letter 03-10-ST: Managing Electronic Mail: Guidelines & Best Practices'. The complete document can be found online (see here) and is available for download in both MSWord and PDF formats. DARM is the state's rule-setter in this matter, and it does not countenance 'best practices' by private industry or any other body.

PUBLIC RECORD OR PRIVATE EMAIL?

The letter states clearly that it is not the fact of an email being sent that makes it a public record, but WHAT IS DISCUSSED in the email and WHETHER IT INCLUDES AN ATTACHMENT (such as a Word document, an Excel spreadsheet or a PDF file) which is CONCERNED WITH THE PERFORMANCE OF OFFICIAL BUSINESS -- in which case the email in question becomes a PUBLIC RECORD, subject to DARM's retention policies.

The circular letter is also quite clear about emails that DO NOT CONSTITUTE A PUBLIC RECORD --

1.5.1 Non-Record E-mail Messages
E-mail messages that do not meet the criteria of the New Jersey statutory definition of a record per N.J.S. 47:3-16, as amended, may be deleted at any time, unless they become part of some official record as a result of special circumstances. These types of messages may include:

1.5.1.1 Personal Correspondence
Any e-mail not received or created in the course of state business, may be deleted immediately, since it is not an official record. Examples of the type of messages that may be deleted are unsolicited e-mail advertisements, commonly called “SPAM,” personal messages, or the “Let's do lunch” (not a State-business meeting over lunch) or “Can I catch a ride?” type of note. (Emphasis added -- DD)

So, it would seem that a policy by the BOE regarding personal emails that requires their retention for ANY LENGTH OF TIME goes beyond the clear policy of DARM, which sets the rules, and may be subject to challenge on the ground that these may be deleted AT ANY TIME. Such deletion does not carry with it any suggestion of stigma -- that is, that deletion implies there is 'something to hide'.

Quite straightforward.

But let's consider an example that complicates matters somewhat.

Suppose Employee A had a responsibility to complete and submit a spreadsheet by a certain due date -- whether to a superior, a team member, or to the state -- as part of Employee A's official duties.

Suppose also that it was due on a Monday at 9:00 A.M. and was finished by the end of work on the preceding Friday. However, at the moment they attempt to send the email and attachment, they find the District's email service down. Employee A emails the completed spreadsheet as an attachment to the designated recipient BY USING THEIR PERSONAL THIRD-PARTY, PASSWORD-PROTECTED EMAIL ACCOUNT (such as Gmail or Yahool Mail) from their work computer.

By doing so, Employee A has now made A PUBLIC RECORD out of an email on their PERSONAL EMAIL ACCOUNT.

As a public record, it is required that it be archived in keeping with DARM's retention policies.

Who will do the archiving? The employer (in this case the BOE)? It may not be that simple. The employee? What guarantee is there the employee will properly archive the email?

THE NJ SUPREME COURT STEPS IN

On March 30, 2010, in Stengart v. Loving Care, the New Jersey Supreme Court ruled that employees have 'a reasonable expectation' that their personal emails will not be read by their employer. (See news coverage here, and a legal analysis here.)

While the question adjudicated was one of an employer systematically going through an employee's personal email, the issues still arises in the case of Employee A: How will the PUBLIC RECORD that Employee A has created on their PERSONAL EMAIL ACCOUNT be properly identified and retained per DARM requirements?

This is uncharted territory, and any email policy needs to be carefully planned out, with an eye to potential litigation over the 'grey area' of personal emails on work computers.

A POTENTIALLY MORE TROUBLING ISSUE

There is, at least to my mind, an even more troubling issue.

While it is laudable that the BOE's Policy Committee appears to be addressing the issue of PUBLIC RECORDS RETENTION, the policy appears to have a major shortcoming.

You will note that the policy is identified as '4119.26/4219.26: Staff Use of Internet Social Networks and Other Forms of Electronic Communication'.

The 4000 series in the District's policy manual deals with policies concerning INSTRUCTIONAL AND SUPPORT PERSONNEL (see here).

This is all well and good, but experience shows time and again that the REAL PROBLEM in the matter of retention of PUBLIC RECORDS created by email has to do with the determination of the EMAILS OF ELECTED OFFICIALS THAT QUALIFY AS PUBLIC RECORDS and their proper retention.

Glancing further down the policy manual, you will find that the section that deals with the Board of Education itself -- the 9000 series -- contains NO POLICY WHATSOEVER concerning emails.

This is a glaring omission, one that the new Board will have a chance to correct, thus delivering on their promises of 'promot[ing] trust, transparency and respect' and 'establishing policies and practices that govern with integrity and accountability'.

And that would send a good message to the community about the new Board's integrity.

---

• PEPTalk Revisited: "Don't sleep Plainfield"
• Plainfield Public Schools: "BOE Agenda: 4/13/10" (PDF)
• DARM: "Circular Letter 03-10-ST: Managing Electronic Mail: Guidelines & Best Practices"
• Dark Reading: "Supreme Court rules employers can't always read personal email"
• Workplace Privacy Report: "Court rules on personal e-mail privacy: Stengart v. Loving Care"
• Plainfield Board of Ed: "Policy Manual"
  

-- Dan Damon [follow]

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