By Jeannie Foley – Public Affairs Staff Writer
You may no longer hear a tiny voice announcing “You’ve got mail!” every time an e-mail lands on your computerized desktop, but there is no doubt that electronic communication is becoming increasingly common in the workplace.
Since e-mails, text messages and other forms of electronic communication often lack physical hard copies, it could be easy to forget about these paperless “documents” when dealing with record-retention practices. But these paperless communications can often qualify as public records, and they must be properly maintained to comply with Ohio’s Sunshine Laws.
Keeping in mind the increasing number of ways to communicate and store information using fast-changing technology, the following are some practical pointers from the Ohio Sunshine Laws Manual, a resource provided by the Ohio Auditor of State and the Ohio Attorney General, which can be used in evaluating the records retention schedules in your office:
It is important that you follow your office’s retention schedules,” said Robin Rose, director of the Open Government Unit at the Ohio Auditor’s Office. “If you don’t, you may have to recreate records at your own expense.”
In 2008, the Ohio Supreme Court emphasized this point by holding a public office is responsible for recreating e-mails deleted in an improper manner [State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs.]. The court unanimously ruled that if e-mail messages needed to fulfill a suitable public records request have been deleted in violation of a public office’s approved records-retention policy, the office must pay the cost of finding and reproducing those records. The Ohio Supreme Court found that the expenses the government entity may incur as a result of recovering the deleted e-mails is not a strong justification for an entity’s noncompliance to the public records provisions of Ohio’s Sunshine Laws.
“Because the office did not establish they were following their retention schedules, they were required to hire an outside expert to perform a forensic recovery of the computer systems used in the office,” Rose explained. “Even when computer files appear to have been erased from the system, electronic traces remain behind. Recovering ‘deleted’ files and e-mail requires specialized technology and expertise – an expensive proposition that can be avoided by being proactive about records retention.”
It is important to understand that content should be the driving force behind determining whether a record needs to be retained. While it may be easy to think of e-mails as insignificant because we receive them in electronic form, if the content of the e-mail meets the statutory definition of a public record, it must be kept according to a public office’s appropriately approved retention schedule.
“In addition, an office needs to address changes in its records and update its retention schedules accordingly," Rose said. "Luckily, there are resources available to help. Although each office is responsible for developing its own individual schedules, the Ohio Historical Society and the Auditor’s Open Government Unit are both available to help local governments find resources to assist them to develop appropriate records retention schedules.”
If you have any questions regarding Ohio’s public records laws or you would like a copy of the Ohio Sunshine Laws Manual for 2010, e-mail Auditor of State Mary Taylor’s Open Government Unit or call 800-282-0370.
The manual may also be viewed or downloaded as a PDF file at the Auditor of State’s Web site.
In addition, helpful resources and forms are available from the Ohio Historical Society’s Local Government Records program.