Research: What Colorado needs to do to preserve the modern public record

When state Sen. John Cooke asked for email communications of the top official for the Colorado Air Quality Control Commission last fall, the agency’s response stunned him.

“There are no records responsive to your request,” the health department’s legal compliance director wrote. “Mike Silverstein ended employment with the Department prior to your request and his email and network accounts had already been deleted.”

Silverstein had left his position as the commission’s administrator and technical secretary just a few days before the lawmaker’s August 2018 open records request, Cooke learned. The official’s emails had been “totally wiped out,” the Greeley Republican told the Colorado Freedom of Information Coalition.

“I can see if it was a state janitor who has a state email address, but somebody that high up?” Cooke said. “The problem is, they didn’t even look at (Silverstein’s email archive). They just dumped it without regard to the position the guy held.”

The Colorado Department of Public Health and Environment could dispose of a former high-ranking employee’s emails because the records retention schedule for state agencies gives officials the discretion to decide which emails are important enough to keep. The state archives law, which requires each state agency to have a retention policy, specifically excludes electronic mail messages from its definition of “records,” unless the recipient stores them as evidence of governmental activity or because they contain valued governmental data.

The Colorado Open Records Act also doesn’t provide any meaningful guidance about the retention of public records. Although the law directs records custodians to adopt a policy regarding the retention, archiving and destruction of records kept “in miniaturized or digital form,” it doesn’t outline any specifications for such a policy.

Cooke’s experience isn’t unique. Because CFOIC has heard similar stories from frustrated records requesters, we asked University of Denver law student Jill Beathard (Sturm College of Law, J.D. 2019) to research the laws governing the retention of public records, examine best practices and make some recommendations.

Jill Beathard

CFOIC hopes that Beathard’s paper, “But the Emails …. What Colorado Needs to Do to Preserve the Modern Public Record,” will start a conversation about how long state agencies and local government entities should keep emails, text messages and other electronic communications that concern public business.

“Open records laws cannot serve their purpose if requested records no longer exist,” the report begins. “… Communications that are, in fact, public records often are not retained and thus are not available when someone submits an otherwise valid request to inspect them.”

Beathard recommends that Colorado’s retention laws and policies be clarified, or at least be better enforced, and that retention requirements also apply to departing employees. She points to other states that have begun using software for electronic records management. And she suggests that government entities in Colorado consider using the “Capstone” approach, considered to be “the gold standard for email management.”

Under this scheme, developed by the National Archives, “the decision to retain emails is determined by an account user’s role or position in an agency rather than the content of correspondence.”

The health department eventually recovered about 3,000 of the deleted emails requested by Cooke by searching state servers for copies of the messages kept by other state employees. But that happened after Sen. Pete Lee, a Colorado Springs Democrat who chairs the legislature’s Committee on Legal Services, sent a letter to the department’s legal compliance director.

“You talk about a lack of transparency and trust among the public,” Cooke said. “Government can just wipe out all of their documents and you don’t know?”

Original post from the Colorado Freedom of Information Coalition by Jeffrey A. Roberts on October 1, 2019. 

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