Colorado Revised Statutes & Government E-Mails (Part 2 of 3)

Right, so, in the previous post, I tried to clarify the statutory mandates held by various offices with  reference to e-records, including emails. The take away was that it's complicated, inconsistent, and that in some parts of statute, emails are EXPLICITLY excluded from the definition of state records.

Where we pick up
On March 14, as part of "Sunshine Week" on radio program Colorado Matters, the station produced a segment entitled Are State Agency E-Mails Too Easily Deleted? The Colorado Freedom of Information Coalition also picked up the story (Retention of government emails in Colorado ‘an honor system thing’).

So what's the deal?

Record or not?
Basically,C.R.S. 24-72-202 explicitly identifies emails as state records, subject to CORA requests.C.R.S. 24-80-101 specifically excludes emails as state records, as items to be retained and subject to the jurisdiction of the State Archives.

Obviously, that's bad. The State needs to decide, one way or the other, if emails are or are not records. My opinion, and the opinion of other archivists, and the opinion of people who want more transparency in government, is that OF COURSE emails are records. Honestly, I think most people would agree with this. The State Archives keeps the official correspondence of previous governors; it is silly to argue that because the official correspondence is digital rather than analog, that it's no longer "official correspondence." So here we have a case of the letter of the law ("no emails") not accurately reflecting the spirit of the law (citizen oversight and transparency of official government open records).

How did we get to this?
I only worked at the State Archives for a little over a year, so I don't have a great depth of institutional memory. And honestly, I doubt anyone could answer this explicitly. Carelessness? Luddite approach to technology? Everyone forgot the Archives existed to begin with? (Don't laugh; it happens all the time.) No one wanted to spend the money? I don't know, but I do feel that none of these is really an acceptable reason. I would like to see our legislature educate themselves about the services of an archive and the prevalence of and issues surrounding digital records (more on both of these in a minute), so that the citizens of Colorado can get what they want: more transparency and better access to government records.

Follow the money
The 500 lb. gorilla in the room, of course, is the money. Everyone talks about how cheap digital storage is. That's true, to a point. You sure can store a lot of stuff in Google Drive (or Google Vault, which is the specific implementation mentioned in the audio piece linked above). But that is really not adequate for archival access. Sure, that email from last week? Fine. Do your keyword searching and hopefully find the right thing.

But for the scale of records we're talking, and for the time frames we're talking ("permanent retention," which I discuss below), that is not going to provide adequate recall, document preservation, or document security.

• Recall: Can you find what you want? Archives (and libraries--more people are probably familiar with how they work) use a lot of additional descriptive information and "metadata" to improve recall, or find-ability. You need more than just keyword searching if you're going to be able to find specific items in massive collections. For instance, if you search for a bill by name and the email only references it by number, without additional descriptive information, you will never find it. So that's one thing Archives are really excellent at.


• Preservation: Everyone has an image of the white-gloved archivist, shushing and looking through old ledgers. While that is sometimes partially true, that's totally irrelevant for e-records. Digital preservation is way more involved than you probably think. It involves things like maintaining all the appropriate metadata, as described above, but also things like maintaining "checksums" to ensure document stability, refreshing media (if backed up on physical media--if it's on a 5.5" floppy and you don't have the drive, you might as well not have the record), potentially migrating formats (or maintaining legacy software and hardware to ensure access to that Lotus-1-2-3 document you need), etc. These services are NECESSARY if you want to ensure that these records are available for more than, say, 3-5 years. Unfortunately, they come at a price. Unlike paper records, you can't just toss them in storage and assume they'll be readable 30 years later. They need routine maintenance.


• Security: There are several issues here. One is privacy: a lot of government records include personally-identifying information or are otherwise private. This will come up more in the next post (about e-records in general). Another is document authenticity: if storage got hacked and documents altered, that would be VERY BAD--and possibly the only way you could tell would be by maintaining your checksums and noticing a difference there. Thirdly, there is a risk inherent in using systems that mirror the stored information internationally, if, for instance, that information is of geopolitical significance. That's not a huge deal for most of what we're talking about, but honestly, do you think the Department of Defence lets their information get backed up on servers in China? Probably not, and realistically, big commercial vendors like Google are going to do that, because it does reduce risk (by being in a geographically-disparate location) while also helping their bottom line. That's not inherently bad, but we need to be cognizant of where our stuff in the cloud actually "lives."

All of these services cost money. If you don't want to spend that money, your records will probably not be preserved, and if you get lucky and they somehow are, you probably won't be able to find them. And remember, these are documents that make civic life possible. It's your house deed. It's your high school diploma. It's your marriage license or divorce decree or probate establishing your possession of subsurface rights.

And this feeds back into the statutes: if emails are NOT considered records for the purposes of the State Archives (even though the staff there thinks they should be), that means that the State is NOT budgeting money for their preservation there. State Archives may want to maintain emails and other digital government records, but if they don't even have the money for servers, it simply can't be done. And that is the situation.

So what does an archive do, anyway?
OK, so here's how this is SUPPOSED to work.

1. Originating agency (Governor's Office, CDOT, a school district, a county clerk, the District Court, whatever) creates records: correspondence, reports, registered birth certificates, marriage licenses, business licenses, court cases, adoption files, recorded property lines, etc.
2. Independently, the originating agency, the State Archivist, and the Attorney General (more on this later, too) work together to create a "retention schedule." A what? A retention schedule. This is the official document that basically translates statute to practice, and that also makes judgment calls on any document retention not specifically guided by statute. Still "what??" Statute will tell some agencies some things that they absolutely have to keep forever ("permanent retention"). Some things are judgment calls: how long does the DMV keep the receipts from your most recent license plate renewal? Not forever, don't worry. But the retention schedule fills out how long that is. (Note: This part of the process changes under the bill currently being considered.)
3. When records become "inactive"--that is, they aren't currently being used on a daily basis, added to, revised--they are transferred to appropriate storage. If it's a non-permanent record, that will usually be somewhere in the originating agency's own storage. If it's permanent storage, they go to State Archives.
4. At the end of a non-permanent record's retention period, it will be securely destroyed.
1. Why not just keep everything?? 
1. Cost
2. Overwhelming bulk would impeded access
3. Liability: You hate to say it, but folks with legal education will tell you that destruction of documents beyond their period of retention will protect you, legally. That is definitely a concern for government agencies (and businesses). Think of it as a statute of limitations: you keep your documents for their retention period. You destroy them at that point, because your legal liability has "expired," as long as you destroy the documents legally.
5. Permanent records, at Archives, are cataloged so that they are findable and housed in such a way as to promote their long-term preservation. Maybe access copies are made, so that originals are not damaged through frequent use. Maybe they are put in an online catalog, for off-site access. Archives adds a lot of value and promotes access, and through that access, government transparency and accountability. Archives ALSO provides a layer of security: processes are in place to ensure that private information remains private. Sometimes it's permanently private (like mental health records from state hospitals); sometimes it's private only for a set period of time. 

OK, but what about the emails?

As is (I hope!) abundantly clear by now, preservation of and appropriate access to government records is the reason State Archives exist. This is what they're for. It is in all of our interest that government records be treated appropriately, so that they are preserved and we, the citizens of the state, can access them if and when we need or want to.

Emails are specifically not being sent to Colorado State Archives. That is based in statute. That means that State Archives is not able to provide the access mandated in CORA--although arguably the originating agency would still be accountable for that access. However, most agencies do not have specialized staff charged with providing access to these records, and if the official or employee had deleted an email that was later wanted, it would most likely not be recoverable, as to the best of my knowledge, there is no procedure in place for identifying or requesting such a document--and if technologically feasible, it would probably be expensive.

What can we do???

Does State Archives want the emails? Keep in mind that, at this point, their budget and staffing is not adequate to the task. Considering emails a government record, even if just using the capstone approach discussed in the audio, would still generate a LOT of records. If they were permanent records, as I would expect them to be (as most official correspondence in analog format is designated "permanent retention"), they would add up FAST. Stewarding this many records, even with small individual file size, would add up quickly, both for redundant and secure storage and for staff time ingesting (e.g., receiving and getting all the initial metadata) and doing maintenance.

To make email storage and access feasible at State Archives would take a significant cash infusion, both for hardware and for a number of new staff members. State Archives is understaffed at this point, with professional staff spending most of their time providing customer service, rather than undertaking the professional duties necessary to ensure easy access to government records. It is, unfortunately, impossible to discuss moving emails to State Archives without making appropriate increases to their budget to support infrastructure and staff to ensure these records' storage, preservation, and access.

What YOU can do

If you care about this issue--government transparency and accountability through access to government records--please contact your state legislature representatives. It's March 2016 as I'm writing this; Legislature is in session, and the budgetary process is in full swing. 

In fact, State Archives has a bill under consideration to begin addressing some of these issues. You'll notice it doesn't actually take on the email issue yet: that's because it is assumed that the budget will not follow. To make the State Archives responsible for emails-as-government-records without providing the funding necessary for hardware and staff would be pointless. I encourage you to communicate to your representatives that you support emails as records, you support increased government accountability through increased access to government records, you support the State Archives' current bill, and you support increasing funding to them so that they can do this job on the behalf of the wider public.

Other states have done this successfully: Utah, our neighbor to the west, is one of the shining examples of state archives nationally. The citizens of Colorado deserve just as much government accountability as anyone else.