By Tonia Moxley for The Roanoke Times
Saturday, March 19, 2005
Government officials have long known they are required to keep documents such as letters, memos and faxes, and make them available to the public.
When those documents weren’t preserved, it was usually because an official was grossly ignoring the law.
As e-mail has proliferated in the government’s work, state law has mandated that it be treated the same as its paper counterparts.
“It’s crystal clear. E-mail is a record,” said Maria Everett, director of the Virginia Freedom of Information Advisory Council.
But localities in the Roanoke and New River valleys have been slow to catch on to the change.
Some officials in Blacksburg, Franklin County, Rocky Mount and other places say they regularly delete e-mails. Others still question whether e-mails are public documents at all.
Noncompliance and its effects
Two Virginia laws govern public records. The Freedom of Information Act defines what records are public. The Public Records Act puts the Library of Virginia in charge of writing what are called “schedules of retention” for them.
FOIA defines public records as “all writings and recordings … prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business.”
The FOIA council, which was created by the General Assembly in 2000 to advise government and the public on the law, has said that e-mail falls under this definition.
Schedules written by the Library of Virginia require that chairmen and chairwomen of boards and councils, managers of cities and towns, and county administrators keep e-mails permanently. Regular board members must keep their e-mails for three years. In most cases, these documents must be made available to the public.
But levels of compliance vary widely in the Roanoke and New River valleys.
Montgomery County, for example, tells its officials to follow state law but doesn’t have any process for keeping e-mails.
Officials are “individually responsible for retaining and cataloging e-mail and other documents, as they deem appropriate,” county spokesman Robert Parker wrote in an e-mail.
Some provide documents when requested; others do not.
The same applies to Blacksburg, where only two out of seven council members – Ron Rordam and Don Langrehr – said they save e-mails indefinitely.
Some do as does Rocky Mount Town Manager Keith Holland, who said in January that he deleted e-mails related to public business just as he did any other e-mail.
“It really hasn’t been an issue for us yet,” he said, because some council members don’t have e-mail.
But on Wednesday, he said he now saves some e-mails if they are important. Asked what he believes is important, Holland said it “depends on the issue.”
Some localities have processes in place to collect e-mails automatically.
“We back up e-mails like we do other documents every night,” said David Moorman, Botetourt County’s assistant administrator. “We don’t treat them any different.”
Roanoke, Roanoke County, Salem, Pulaski and Pulaski County all say they have processes in place for saving e-mails and even provide training for officials.
But those systems may not catch all e-mails.
Bedford County has a system to collect e-mails. But Supervisor Chuck Neudorfer said he uses his personal computer and e-mail account – not the county system – for government business.
Even when officials save e-mails, citizens and the press must sometimes turn to the courts to get them.
Last May, Doug Harwood, publisher of the Rockbridge Advocate, reported to the commonwealth’s attorney that the county economic development director was deleting e-mails about the Virginia Horse Center.
The commonwealth’s attorney scolded the director but wouldn’t prosecute the case. Harwood didn’t have the money to sue to get the computer examined.
“So that was the end of that,” Harwood said. “They outgunned me.”
Officials who fail to turn over records to a successor are guilty of a Class 3 misdemeanor. But state records administrator Robert Nawrocki doesn’t recall anyone being charged with the crime in his four years at the Library of Virginia.
“Unfortunately, there are no FOIA police,” the FOIA council’s Everett said.
A state panel is looking at the preservation of electronic records and may soon recommend that the legislature add punishments for those who destroy records, Everett said.
Barriers to compliance
One problem with compliance may be the way officials view e-mail.
Blacksburg Town Clerk Donna Boone-Caldwell said she thinks of e-mails as telephone calls and doesn’t see the need to save them.
Another problem is that the law doesn’t include rules on how to retain e-mails. The FOIA council and the Library of Virginia suggest officials save them in dedicated computer files or print and file them as hard copies.
Some officials lament that there are just too many e-mails to keep up with.
“If I kept them, I’d have a stack 10 feet tall,” Blacksburg Town Councilman Al Leighton said.
Saving them can be a “legislative burden,” Everett said. “But it’s the responsibility of government.”
Everett and Nawrocki travel the state each year giving lectures on open-records laws. The Virginia Municipal League and Virginia Association of Counties also offer some training. But no law mandates that government officials get training.
It comes down to intent, Nawrocki said. “Someone has to make the conscious decision to preserve that record.”
Newspaper publisher Doug Harwood said he’s not sure ethics are enough motivation for some public officials to obey the law.
“If you’re up to no good, it’s certainly not in your interest to hang onto embarrassing things.”
Staff writers Mike Allen, Jay Conley, John Cramer, Paul Dellinger, Greg Esposito, Jill Hoffman, Tarah Holland, Todd Jackson, JoAnne Poindexter, Don Simmons and Tim Thornton contributed to this report