Transcript Have Records? Have E-Mail? What to Keep, What to Delete, and How to do each Jim Corridan, Director Indiana Commission on Public Records Heather Willis.

Have Records? Have E-Mail?
What to Keep, What to
Delete, and How to do each
Jim Corridan, Director
Indiana Commission on Public Records
Heather Willis Neal
Indiana Public Access Counselor
ISBA School Law Seminar
June 12, 2009
Retention of Records
 State law requires Indiana governments to
protect records from loss, alteration,
mutilation, or destruction.
 Each agency must follow the agency’s retention
schedule adopted by the Indiana Oversight
Commission on Public Records; the state and
local General Retention schedules cover
records which are not agency-specific.
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County Records Commission
 Each County has a Records Commission which
meets annually.
 Recommends to ICPR the destruction or
transfer of local records not found on a
schedule.
 Approves the destruction or transfer of local
records listed on a schedule.
 The Superintendent of the school corporation
located in the County seat serves on the
County Commission.
 County Clerk liaison to ICPR and by statute
serves as the local commission’s secretary.
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OCPR Email Policy 05-01
 PART 1: Agency related e-mail conducted on
government computers is a public record.
Indiana Code 5-14-3-2 defines a public record
as: any writing, paper, report, study, map,
photograph, book, card, tape recording, or
other material that is created, received,
retained, maintained or filed by or with a public
agency and which is generated on paper, paper
substitutes, photographic media, chemically
based media, magnetic or machine readable
media, electronically stored data, or any other
material, regardless of form or characteristics.
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Email as a Public Record
 PART 2: The General Assembly
essentially precludes any government
employee from determining individually
what is or is not a record: anything, on
any medium and created for any
governmental purpose, falls under the
rubric of public records law.
Consequently, e-mail messages are
public records and are subject to record
retention requirements.
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Email Retention
 PART 3: Electronic Mail is not a record
series for retention scheduling
purposes. Rather, the retention of Email must be based on content, not
media type. E-mail should be retained
for the same duration as other
records of similar content included in
a given record series on an approved
retention schedule.
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Digitizing Short-Term Records
 Non-court records whose retention schedule
states the records may be destroyed after a
retention of ten (10) years or less, whether
listed on the General Retention Schedule for all
state agencies or on an agency-specific records
retention schedule, may be converted from
paper to electronic format, and the paper may
be destroyed after verification of the electronic
records for accuracy and legibility, provided:
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Digitization Requirements
1) the imaging system has been approved by the Commission
on Public Records before the conversion process begins,
2) it meets the Commission on Public Records standards for
quality, migration, readability, and backup availability,
3) the agency can guarantee the records will be accessible for
the life of the retention period,
4) an indexing system will be in place to allow for rapid
recovery of electronic records, and
5) during the initial 12 months of the imaging program
commencing, the original paper records will be retained to
guarantee recovery should the system fail and should a
failure occur, they shall be retained until the end of twelve
months or until the problem is resolved, whichever is
greater.
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Permanent Records
 A large percentage of school records are
permanent.
 You can only destroy or transfer permanent
records if you MICROFILM the original records
and seek permission from County and State
Oversight Committees.
 If you digitize permanent records, or they are
submitted electronically they MUST also be
converted to microfilm.
 Digital Records are NOT recognized as a
permanent format to preserve information.
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Access to Public Records Act
Basics
 “Providing persons with the
information is an essential function of
a representative government and an
integral part of the routine duties of
public officials and employees, whose
duty it is to provide the information.”
 The full text of APRA can be found at
Ind. Code 5-14-3.
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Access to Public Records Act
Basics
 General rule:
 Any person may inspect and copy the
public records of any public agency
during the regular business hours of the
agency, except as provided by section 4
of the chapter (which addresses
exceptions to disclosure).
I.C. § 5-14-3-3(a).
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Access to Public Records Act
Basics
 “Public records” are broadly defined: can
be summarized as “any material that is
created, received, retained, maintained or
filed by or with a public agency.” I.C. § 514-3-2(n).
 The Indiana Court of Appeals has added to
this definition any material created for or
on behalf of a public agency.
 Knightstown Banner v. Town of Knightstown,
838 N.E.2d 1137 (Ind. Ct. App. 2005).
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Access to Public Records Act
Use of Technology
 Electronic Mail
 Any record, including electronic media,
created received, retained, maintained,
or filed by or with a public agency is a
public record.
 Therefore, electronic mail messages are
public records if they are created,
received, retained, maintained, or filed
with a public agency, including a
governing body.
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Access to Public Records Act
Use of Technology
 Email messages maintained in a personal email
account (e.g. Yahoo! account) are generally
not public record.
 If the personal email is submitted to the
agency, it becomes a public record.
 Example: A school board member forwards
a personal email message received from a
neighbor to the superintendent’s school
email account and asks the superintendent
to address the issue.
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Access to Public Records Act
Use of Technology
 Email messages must be available for
inspection and copying by the public
agency unless an exception to
disclosure, based on the content of
the message, applies.
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Access to Public Records Act
Basics
 Exemptions to disclosure (I.C. § 514-3-4)
 Section 4(a) categories are confidential
 Declared confidential by state statute
 Required to be kept confidential by federal
law (e.g. FERPA)
 Patient medical records created by a
provider
 Declared confidential by rule adopted by
Indiana supreme court (Admin. Rule 9)
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Access to Public Records Act
Basics
 Section 4(b) are discretionary
categories
 Investigatory records of law enforcement
 Attorney work product
 Personnel file information, except for
information that must be disclosed
 Intra- or interagency deliberative
materials – expression of opinion or
speculative in nature and communicated
for purpose of decision making
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Electronic mail communication and
meetings of governing bodies
 Electronic mail
 Members of governing body must be cautious in
use of email when it is used between and among
members to conduct official business; while
email communication may not be a meeting,
many of the messages will be public records.
 Indiana courts have not addressed the issue of
email communication as a meeting, but the
Virginia high court ruled that email
communications did not constitute a meeting.
Beck v. Shelton, 593 S.E.2d 195 (Va. 2004).
Email communication lacked simultaneity.
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Contact Information
 Public Access Counselor
 402 West Washington Street, W470
Indianapolis 46204
 Fax: 317.233.3091
 Phone: 317.234.0906
 Website: www.in.gov/pac
 Commission on Public Records
 402 West Washington Street, W472
Indianapolis 46204
 Phone: 317.232.3380
 Fax: 317.233.1713
 Website: www.in.gov/icpr
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