E-mail discovery, open records, and the FRCP

According to some estimates, 90% of business correspondence is now conducted through email.

When cities and counties and school districts discuss business matters in correspondence, that correspondence is a public record.

If that correspondence is conducted via email, the cities, counties and school districts need to be able to produce copies of those emails to reporters or interested citizens when an open records request is filed.

That means that an agency that wants to be able to provide copies of its public documents that exist in electronic form (like emails) needs to have a non-burdensome way to find requested emails. In other words, a taxing entity that is subject to FOIA ought to build its electronic files in such a way that easy search, retrieval and production of public documents is possible.

In 2006, the Federal Rules of Civil Procedure were updated in order to provide a clearer definition of how organizations, including government agencies, should store their electronic documents in order to make them easily accessible to discovery. To the extent that organizations pay attention to the new FRCP guidelines, their email records would also be easily available when open records requests are filed.

Roger Matus notes this morning that the courts are continuing to provide clarification on what organizations are expected to be able to do in terms of recovering electronic documents. In this case, a U.S. district court judge in Florida has ruled that agencies must be able to provide deleted emails.

E-record expert Ralph Losey notes that there’s a difference between deleted and double-deleted.

On the federal level this year, emails have been an important part of the unfolding story about whether the firings of U.S. federal prosecutors were politically motivated.

Many citizen FOIAers who file open records requests at the state and local level say that the ability or willingness of records custodians to supply copies of emails is not very advanced.

An important area for advocates of freedom of information will be working with state and local governments to ensure that these agencies store electronic documents in such a way that they are easily able to be produced in response to open records requests.

Fortunately, if these agencies manage their electronic documents in a way that is consistent with the new FRCP about electronic records, they will simultaneously meet standards that will make the documents considerably more available to open records requests than they typically have been in the past.

Citizen FOIAers and reporters should encourage local and state government agencies to conform to the FRCP standards.

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