As you know from my sidebar-bio, I'm a former
Colorado State Archives employee, so this is an issue near and dear to my heart. I'm not trying to provide an anti-government screed, but I do want to advocate for why this issue matters and why citizens in all states should be concerned about where public records are going and how they're being stewarded. I just happen to know about Colorado, or at least some of what's going on, or not going on, here. Truthfully, there's a lot of room for improvement and citizens should be concerned; however, I also know that the archives staff is making an effort, and needs legislative support and allocation of adequate resources to make substantive progress. So if you are a Colorado resident, I encourage you to contact your elected officials, particularly
your state legislators, and tell them that this matters to you.
I feel like I need to preface this with the caveat that I'm not a lawyer, nor do I have a J.D. What I'm saying is based on a non-lawyer's reading of the Statutes, and on how I've seen this play out while I was working in the state government as an archivist specifically working with microfilm and digital records that were sent to archives as security copies.
Why this matters now
It's mattered for a long time, but it came up recently, on March 14, as part of "Sunshine Week" on
Colorado Matters. The station produced a segment entitled
Are State Agency E-Mails Too Easily Deleted?, which began to shed some light on these issues. The Colorado Freedom of Information Coalition also picked up the story (
Retention of government emails in Colorado ‘an honor system thing’). I hope to provide some context on statutory requirements and archival best practice, in case these articles left you with some questions.
What is actually in statute?
The next two posts will deal more concretely with emails and with other textual records, but those posts were getting out of hand when I tried to include CRS background there. So in this post, I just want to lay out some relevant parts of the Colorado Revised Statutes (C.R.S.), which is the code overseeing the preservation of government and public records as part of state law.
Frankly, it's pretty confusing to track down the relevant statutes; here are the ones I could find and am aware of. There may be others. You can get access to the
Colorado Revised Statutes for free through LexisNexis. I had a few problems with the site: works best in IE, and you may have to disable popup blockers and/or allow “non-secure” scripts for the text to load.
I should also note that the legislature is currently in session. There is
a bill under consideration that will adjust some aspects of how the State Archives functions. It does NOT, however, clarify the emails/e-records issues.
Key statutes for e-records
C.R.S. 13-26-102: TITLE 13. COURTS AND COURT PROCEDURE, EVIDENCE; ARTICLE 26. UNIFORM PHOTOGRAPHIC RECORDS ACT; Business and public records as evidence
Why is this important for this issue?: For our purposes, this is of interest because it identifies digital surrogates (e.g., scans or other digitized copies) in non-editable form acceptable evidence. From a technical standpoint, that is harder and more costly to do than it sounds: a regular PDF won't cut it.
C.R.S. 24-72-202: TITLE 24. GOVERNMENT - STATE ; PUBLIC (OPEN) RECORDS; ARTICLE 72.PUBLIC RECORDS; PART 2. INSPECTION, COPYING, OR PHOTOGRAPHING: Definitions
Why is this important for this issue?: This explicitly states that emails are public records.
C.R.S. 24-72-203: TITLE 24. GOVERNMENT - STATE ; PUBLIC (OPEN) RECORDS; ARTICLE 72.PUBLIC RECORDS; PART 2. INSPECTION, COPYING, OR PHOTOGRAPHING: Public records open to inspection
Why is this important for this issue? This is a bit ancillary for what I'm planning to write up, but if you're interested in appropriate preservation of e-records, you should know about this statute, as it establishes rights of inspection of public records for private citizens.
C.R.S. 24-80-101: TITLE 24. GOVERNMENT - STATE, STATE HISTORY, ARCHIVES, AND EMBLEMS; ARTICLE 80.STATE HISTORY, ARCHIVES, AND EMBLEMS; PART 1. STATE ARCHIVES AND PUBLIC RECORDS; Definitions
Why is this important for this issue? This is important because emails are specifically
excluded from the category of government records (except in some vague circumstances)
C.R.S. 24-80-102.7: TITLE 24. GOVERNMENT - STATE, STATE HISTORY, ARCHIVES, AND EMBLEMS; ARTICLE 80.STATE HISTORY, ARCHIVES, AND EMBLEMS; PART 1. STATE ARCHIVES AND PUBLIC RECORDS; Records management programs - records liaison officers
Why is this important for this issue? One thing I'll need to touch on is the distinction between statute (e.g., the law) and records retention schedules. This statute, combined with 24-80-103 (below) is key to the relationships between the two.
C.R.S. 24-80-103: TITLE 24. GOVERNMENT - STATE, STATE HISTORY, ARCHIVES, AND EMBLEMS; ARTICLE 80.STATE HISTORY, ARCHIVES, AND EMBLEMS; PART 1. STATE ARCHIVES AND PUBLIC RECORDS; Determination of value - disposition
Why is this important for this issue? One thing I'll need to touch on is the distinction between statute (e.g., the law) and records retention schedules. This statute, combined with 24-80-102.7 (above) is key to the relationships between the two.
C.R.S. 24-80-106: TITLE 24. GOVERNMENT - STATE, STATE HISTORY, ARCHIVES, AND EMBLEMS; ARTICLE 80.STATE HISTORY, ARCHIVES, AND EMBLEMS; PART 1. STATE ARCHIVES AND PUBLIC RECORDS; Protection of records
Why is this important for this issue? It provides statutory guidance for necessary levels of protection for permanent government documents. When we talk about e-records, what is "durable" enough?
C.R.S. 24-80-107: TITLE 24. GOVERNMENT - STATE, STATE HISTORY, ARCHIVES, AND EMBLEMS; ARTICLE 80.STATE HISTORY, ARCHIVES, AND EMBLEMS; PART 1. STATE ARCHIVES AND PUBLIC RECORDS; Reproduction on film - evidence
Why is this important for this issue? This statute establishes the originals or copies on microfilm as admissible evidence; digital formats are not mentioned, and one could interpret this to mean that they are not admissible as evidence.
C.R.S. 30-10-407: TITLE 30. GOVERNMENT - COUNTY: COUNTY OFFICERS: ARTICLE 10. COUNTY OFFICERS: PART 4. COUNTY CLERK AND RECORDER: Microfilm and optical imaging records - when - standards for optical imaging systems
Why is this important for this issue? This statute provides guidance for county clerks, but it's not consistent with statute governing the state archives. Per this statute, county clerks are permitted to e-file documents or scan paper documents and steward digitally, but then archives can't steward them, provide access, or, potentially, consider them official copies or evidence.
A couple of important distinctions
Government Records vs. Public Records: Government records are just what they sound like: records created by the government as a part of its function. Many, but not all, government records are also public records, which is to say, open for examination by the general public. The federal census is a public record, for instance: created by the government, it is also publicly available (up to a certain date cut-off, at least). Elected officials’ official papers are another example of public records that are usually public, although sometimes with temporal limits. Some records, such as medical records for individuals institutionalized in mental health facilities run by the state, are government records but NOT public records, because they are not available for public examination (without a court order).
Security/Preservation copy vs. Access Copy: Your security or preservation copy is NOT used for access. It’s the original, or a high-res and non-compressed (if digital) version of the original. Why NOT use this for access, since it’s the “real deal” or the best copy? Because use would degrade it and undermine its long-term preservation and integrity. Instead, you use your
access copy, which is still totally and completely legible and accurate (although it may have personally-identifying information, such as Social Security numbers, redacted to protect individual privacy). If something terrible were to happen to your access copy--it gets jammed in the copier and torn, someone accidentally alters or deletes the file, etc.--the information is not lost: it’s still sitting in the original or security/preservation copy, from which a new access copy can be made.