A few weeks ago, we began the reporting journey I dubbed The Purge, which focused on public records -- specifically email retention policies -- of governmental bodies in Texas. The Governor's office was singled out, because the impetus for this examination was the Missouri Governor and his office's practices.
The Texas Governor's Office routinely deletes its emails (which are considered public records) every seven days. It backs up some of the emails with hard copies, but not all of them. A retention schedule which classifies the emails based on topic or state agency is in place that specifies how soon various emails go bye-bye.
Enter John Washburn. He's a man who believes in open government. He lives in Wisconsin. I don't know much about him besides that. He saw The Purge, Part One when it was promoted on an open records wiki, The Carnival of Open Records. After learning of the Texas situation, Washburn was inspired to request email communication from the Texas Governor's office weekly, before it was deleted. Below is Washburn's first request:
Dear Ms. CountsI must first state my displeasure that the current policy of the Office of the Governor of Texas is to destroy public records after seven days. Public records such as e-mails should archived for at least one year. The retention period should be longer given the simplicity of archiving electronic data.
The following are requests for public records under the Texas Public Information Act (Texas Government Code, Chapter 552)
1. I would like a copy of all governmental e-mail (electronic mail) received by the Office of the Governor of Texas which was received on or after 12:00 am (midnight) Friday, November 2, 2007 and received before 12:00 am (midnight) Tuesday, November 6, 2007.
2. I would like a copy of all governmental e-mail (electronic mail) sent by the Office of the Governor of Texas which was sent on or after 12:00 am (midnight) Friday, November 2, 2007 and sent before 12:00 am (midnight) Tuesday, November 6, 2007.Since, by definition, e-mail is electronic, I would request that all the records produced as part of these PIA requests be provided in electronic form.
Today, Washburn received a reply from the Governor's office, to which he replied. See the she-said-he-said after the jump. It's interesting stuff.
The Texas Governor's Office to Washburn. (Emphasis mine)
Dear Mr. Washburn:
The Office of the Governor on November 6, 2007 received your request under the Public Information Act (the "PIA") for information related to e-mail.
[...]
First, while you are correct that our e-mail system automatically deletes e-mails after a seven-day period, hard copies may exist beyond that time in certain circumstances. Because many e-mails are printed and maintained in hard copy format, we seek clarification as to whether you would like your request to include these hard copies. If so, your request would require our staff to go through virtually every file in our offices.
Hence, providing this information to you will require several days of labor on the part of public employees of the State of Texas. (Please also note that under Section 111.63 of the Texas Administrative Code, and Section 552.261 and other provisions of the Public Information Act, our office must recoup some of these costs to the public from the requestor.) Please consider whether you truly wish for the State's public employees to undertake this task.
Additionally, many of the e-mails that are still on our electronic system will need to be redacted before they are provided to you. Our office commonly discusses internal policy deliberations over e-mail. Some e-mails could be attorney-client privileged. There might be other exceptions to the PIA that we must assert, thus making redacting necessary. Our office can only redact hard copies of the documents. Thus, these emails must be printed and redacted, at a cost of $0.10 per page. Due to the cost and size of the request, it might be beneficial to narrow your request to a specific e-mail topic or to specific individuals’ e-mails.
The Governor is a strong supporter of open government, and this office is ready and willing to respond to any and all public information requests. However, we must require that requests have sufficient specificity in the enumeration of what information is being sought, so that we may fulfill our duties under the PIA.
Please note that under Section 552.222 of the Texas Government Code, we will consider this request withdrawn if we do not receive a written response from you regarding this clarification within 60 days of the date of this letter.
If you have any questions or need additional information, or if you would like to submit a clarified request, you may contact me at the address below or at (512) 463-1788.
Sincerely,
Chelsea Thornton
Assistant General Counsel
Washburn's Response to the TX Governor's Office:
I was quite clear in my request. I want the electronic records. The operative sentence from the original requests was:
“Since, by definition, e-mail is electronic, I would request that all the records produced as part of these PIA requests be provided in electronic form.”
Printed versions are not acceptable. Printed versions are not what was asked for. Redact the electronic records as other states do. My suggestion is to keep a complete archive of emails and also maintain a Public Records Version of this archive such that all records covered by an exemption are redacted or removed. Then PIA requests can be fulfilled from the Public Records Archive without the ruse of creating paper. Iron Mountain, Inc or another competent records management company can help you meet these PIA obligations.
On the matter of changing the request: I am not inclined to narrow this already very narrow request for your convenience. The request was specifically tailored to facilitate the identification and aggregation of the specified emails using tools commonly available to modern email servers and applications. I neither retract nor alter my original PIA request.
I would like to know the number of pages which would be printed should I change my mind and consider the ludicrous option of paying $0.10 per page. It is my understanding that under TSG 552.2615 you are required to itemize copying and other charges if the total is in excess of $40. Making vague statements such as: “Due to the cost and size of the request, it might be beneficial to narrow your request to a specific e-mail topic or to specific individuals’ e-mails”, in my opinion, do not meet this requirement. Or is this vague, unspecified cost you are referring to less than $40? It may be so since a CD-ROMs are cheap. If the total cost is less than $40 dollars, present the amount of the bill so I may pay it and conclude this request.
I consider this email to be a written response pursuant to TGC 552.222, moreover the records in question now cannot be destroyed until matter is resolved.
As a side note I must thank you for using tactics 2, 3, 4, and 7 listed in this document: A Guide To Hiding Records: How to Avoid Complying with Wisconsin's Open Records Law (http://www.gojefferson.com/banner/opinion/foust/hiding/index.html) I especially enjoy the near verbatim excerpt from tactic 7.
If someone asks for an electronic record in electronic form, print it out. Database on paper is almost worthless for research, but the printed version probably complies with the legal requirements for preservation of the record.
In Liberty,
John Washburn
