Frequently Asked Questions about E-mail

• Is government e-mail considered public record?
• Do I need to keep e-mail permanently just because it is a public record?
• Does all e-mail have the same retention period?
• Who is responsible for retaining e-mail messages, the sender or the recipient?
• How should e-mail records be managed?
• Are deleted e-mail messages destroyed?

Is government e-mail considered public record?

KRS 171.410 defines public record as

"all books, papers, maps, photographs, cards, tapes, disks, diskettes, recordings, and other documentary materials, regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency."

The current “Guidelines for Managing E-Mail in Kentucky Government” recognizes and explains this statutory mandate.

Because business-related e-mail is a public record, does not mean that it is an open record. A “Public Record” is a record of a public agency (i.e. a government record). Public Records can be open or exempted (or closed) under the Open Records Act (KRS 61.870-61-884). An open public record, or Open Record, is one that is accessible to the general public upon request. All public records are considered Open unless they fall into one of the exemptions to the Open Records Act (KRS 61.878).

E-mail messages may be open under the Open Records Act. Agency legal councils should be consulted on that matter.

Do I need to keep e-mail permanently just because it is a public record?

Just because e-mail is a public record doesn't mean that it has to be kept permanently. Public records should be disposed of according to an appropriate State Archives and Records Commission-approved retention schedule. The retention period is based on the information contained in the record and the administrative, fiscal, legal, and/or historical value of the information, regardless of the physical form of the record. Some e-mail documents are minor administrative records having only brief convenience or reference value, and they may be deleted within a few months of their creation. However, e-mail is also used to transmit records having significant administrative, legal, research, or other value and may need to be retained long-term, and some may need to be retained permanently.

Does all e-mail have the same retention period?

E-mail represents a communications medium, not a records series. The information in the e-mail, the reason it was created, and the value of the e-mail to the agency determine what kind of record the message is. Once you know what kind of record the e-mail is, the records retention schedule will tell you what the retention period for the e-mail should be. For example, if an e-mail message is considered correspondence, then it should be handled (for retention purposes) just like paper correspondence. Official correspondence having a historical or legal value is retained permanently, but general correspondence should be retained for 2 years.

Who is responsible for retaining e-mail messages, the sender or the recipient?

Just as in the case of paper records, senders and recipients of e-mail messages must determine if the message should be retained to document their role in agency activities. It is possible that the message should be retained by both the sender and recipient.

How should e-mail records be managed?

While the e-mail may be filed differently because it is an electronic record, for classification and retention purposes, it is no different than hard copy records of the same type (correspondence, memoranda, reports, etc.). Additional details regarding e-mail policy for state government can be found in “Guidelines for Managing E-Mail in Kentucky Government.”

Are deleted e-mail messages destroyed?

Not always. Just hitting the "delete" key doesn’t always remove a message. By deleting a message, and removing it from any "recycle bin" or "trash file," you are telling the computer that the file is unimportant and to remove any reference links to the message. If the computer then needs the space taken by the deleted file, it will overwrite the file with a new one. If your computer is not at its memory capacity and the computer doesn’t need the space, then the message may not be removed.

This is how "lost" computer files are recovered. There are special programs that can search hard-drives and recover these files.

Deleted messages may also be stored on backup tapes, or on the agency's e-mail server, for several days, weeks or months after they are deleted from an employee’s workstation. Employees need to keep in mind that sending an e-mail message allows that message to travel across a wide network of computers, any one of which could retain that message indefinitely.

Individual employees are responsible for deleting messages on their own workstation, in accordance with the appropriate records retention schedule. Agencies need written procedures for ensuring that deleted messages are rendered unrecoverable on a regular basis. There are a variety of software packages that will remove files from computers.