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home : news : news May 25, 2016

2/1/2013 6:17:00 AM
Despite retention law, LUHS staff expunged emails
Kleinhans deleted emails, says district didn't back up all emails until September 2011

Richard Moore
Investigative Reporter


Lakeland Union High School apparently did not mandate the retention of staff emails and did not centrally back them up prior to September 2011, and many internal email communications predating that time have been deleted, The Lakeland Times has learned.

District administrator Todd Kleinhans is among those who would have deleted emails. School district emails are public records that, in general, must be retained for seven years.

The school district acknowledged the deletions in a Jan. 11, 2013, letter from LUHS district administrator Todd Kleinhans to Lakeland Times’ publisher Gregg Walker. The Times had made an open records request for email correspondence between Kleinhans and specific staff members for the period Sept. 1, 2009, through Jan. 31, 2010.

In the letter, Kleinhans said he sent what he had, but many of the records had not survived.

“Regarding your request for all emails sent to me from certain individuals, and all emails sent from me to those same individuals, between September 1, 2009 and January 31, 2010, many of the records responsive to your request no longer exist,” Kleinhans wrote. “Only those emails that were created since September 2011 have been preserved on the District’s current electronic back up system. The only emails that still exist from prior to that time are emails that the sender or recipient have either saved to a folder on the District’s server or maintained in their individual email accounts.”

Kleinhans said the district had conducted a search of the district’s server and the email accounts of the people identified in the request for the time period.

“Attached are the emails the District was able to locate as a result of its search,” he wrote. “However, for the reasons explained above, these emails do not represent all of the records responsive to your request, the remainder of which no longer exist.”

 

Records retention law

The problem is, as the Department of Public Instruction makes clear, emails are public records subject to the state’s records retention law, and have been for years. 

The retention law establishes a public records board that decides how long records must be kept. In most cases and in most government entities, that is seven years, and that is true, too, for school districts.

“The period of time a school district record shall be kept before destruction shall be not less than 7 years, unless a shorter period is fixed by the public records board under (the law),” the statute reads.

The Department of Public Instruction’s Records Retention Schedule, issued in May 2010, underscored that point and further emphasized that electronic documents are public records, too.

“General record schedules cover records in all media,” the retention schedule states. “However, Chapter 12, § Administrative Code 12, Electronic Records Management-Standards and Requirements, became effective May 1, 2001. The purpose of this rule is to ensure that public records in electronic format are preserved, maintained, and remain accessible for their designated retention period.”

The format of a document – whether it is electronic or hard copy – does not matter when it comes to the open records and retention laws. It is the content of the record that is important, the DPI’s retention schedule stresses.

“In response to requests for assistance, the state superintendent has revamped this document to examine the issues of records retention and development of strategies for handling records common to all school districts,” the retention schedule states. “The retention periods listed cover both hard copy and electronic records.”

In general, the schedule points out, school records must be kept for seven years, though the schedule carves out some exceptions, mostly for official forms and reports, such as certain student health-care records or tax records, to cite a few examples. Emails are not mentioned among the exceptions. 

Correspondence that can be destroyed in fewer than seven years involves only summer school personnel correspondence (six years), school board correspondence (three years), and management memos and correspondence between management and the school board (one year).

While the nature of the deleted emails isn’t clear – because they have been deleted – not all of the requested emails pertained to management staff, and none involved school board members.

What’s more, the records retention schedule suggests keeping email records beyond the retention schedule timeframe if they have administrative, legal, fiscal, historical, or audit significance.

“Staff should, on a regular basis, review e-mail and delete items that do not need to be retained,” the retention schedule states. “Such maintenance can reduce the burden on servers and improve the overall performance of the system yet ensure that the requirements of records management are observed.”

Overall, the retention schedule states, email users should be wary of deleting them.

“E-mail messages are public records like any other record,” the retention schedule states. “That is, they are public records if they are made or received by any governmental employee in connection with the transaction of public business. ..... All e-mail messages, including personal communications, could be subject to investigatory review or discovery proceedings in legal actions.”

Indeed, the schedule observes, some courts have set legal precedents for making use of email communications as evidence. 

“Haphazard filing procedures, incomplete recordkeeping, and the use of informal language in e-mail messages may misrepresent governmental agencies in legal proceedings,” the retention schedule notes.

It also points out that electronic mail is typically backed up in a central place, something LUHS says it did not do until September 2011.

“Electronic mail is normally backed up to ensure system integrity and reliability, not for the sole purpose of future retrieval, although backups may at time serve the latter purpose incidentally,” the schedule states.

Richard Moore may be reached at richardmoore.gov@gmail.com.







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