law of electronic mail - The impact of the White House case on you!, The

IMPLICATIONS FOR FEDERAL AGENCIES

This court decision impacts the electronic mail system of all federal agencies. In essence, all electronic records produced by the federal government will be considered "records" under the Federal Records Act unless appropriate procedures have been properly approved and implemented to exclude those records. For example, the electronic version of a word processing file could technically be excluded from the definition of the Federal Records Act if the text is printed in full onto a paper document. The electronic version would then become a copy of the record and could be discarded.

This procedure, however, may not suffice for electronic mail records. The Court clearly indicated that merely printing of the screen text does not constitute printing of the entire electronic record. The Court seems to require that a paper print produced from an electronic mail system include other "informational content" contained in the electronic version, such as date of transmission, date of receipt, distribution, etc.

In order to overcome this objection, federal agencies should establish formal procedures to determine which electronic mail records are federal records and assign authorized records retention periods. In a previous article,(2) I recommended that some affirmative action be required to convert an electronic mail record into a formal record of an organization. This procedure could be adopted by federal agencies to comply with the court decision.

A federal agency should first define which classes of communication within the electronic mail system constitute a federal record and which communications do not. For example, a communication regarding a purely administrative procedure, such as scheduling a meeting, may not achieve record status--because such a communication can be defined as a "tool" to accomplish federal government business, not as the government business itself. Records creators could be required to complete an initial screen before transmitting information that would establish the identity, classification, retention, status and other information related to the record. When appropriate, this status information could be attributed to copies of the record by default that are subsequently transferred to a recipient's database or remote computer. Recipients could also utilize a pop-up screen to reclassify the record, or, alternatively, accept the default classification of this record as a duplicate.

Regardless, the court clearly indicated that electronic records within the federal domain may not be destroyed without formal procedures. It appears that the court was particularly disturbed by the informality of the procedures followed by the Executive Office of the President and the unlimited discretion given to federal employees.

After carefully reading this decision, it seems probable that the Court would not have overturned appropriate procedures established for the electronic mail system that included records retention provisions approved by NARA. For that reason, federal agencies should review existing procedures or develop new ones that establish guidelines for creating, managing, and destroying electronic mail records.