MNCOGI background on records retention, presented to Sens. Limmer and Latz February 1, 2017

Posted by: on Feb 2, 2017 | No Comments

MINNESOTA COALITION ON GOVERNMENT INFORMATION

RECORDS RETENTION/E-MAIL – Background

Prepared by Matt Ehling, MNCOGI board member

The Records Management Statute (Minn. Stat. 138.17) governs retention of government records.

138.17 requires government entities to create a records retention schedule and to get it approved by the Records Disposition Panel.

The RMS categorizes government records in terms of general categories of records, and not in terms of specific “form.”  For instance, the RMS speaks of “correspondence” and “memoranda” rather than “letters” or “e-mail.” It speaks of “recordings” instead of “videotapes” or “digital video files.”

At present, there is no mandatory minimum time period for the retention of “correspondence” (including e-mail) under 138.17.

The Minnesota Historical Society (which serves as part of the Records Disposition Panel) provides recommendations for records retention.  Most of the recommendations for correspondence (including county, township, school boards) center on a 3-year recommended retention period for correspondence.  The model city schedule has a 3-year recommendation for “general correspondence” but allows “transitory” e-mails to be destroyed after reading.

The Records Management Statute interfaces with the “Official Records Act” at Minn. Stat. 15.17. The Official Records Act states that government entities need to “make and preserve all records necessary to a full and accurate knowledge of their official activities.”

15.17 has been interpreted to distinguish between “official” records and others that are not “official” and can be destroyed at will.  The Governor’s Office has been operating under such an interpretation since the Ventura administration, and more recently, the City of St. Paul adjusted its e-mail policy to limit record retention by highlighting the distinctions between “official” and non-official records.

MINNESOTA COALITION ON GOVERNMENT INFORMATION

RECORDS RETENTION/E-MAIL – Policy Recommendations

Eliminate references to “official” records in 138.17 and 15.17 and replace with “government records” to make the text of both statutes align, and to eliminate the artificial between “official” records and others.  This distinction currently allows government entities great discretion to destroy records, and should be eliminated.

To codify a minimum retention period for e-mail, set a minimum retention period for “correspondence” instead of “e-mail” in order to align with the existing language of 138.17.  If desired, “correspondence” can be further clarified to cover text-based electronic communications like e-mail.

Given that a 3-year retention period for correspondence is the most frequently recommended period in Minnesota Historical Society model schedules, MNCOGI urges the adoption of 3 years as the statutory retention period for correspondence, including e-mail.

To address concerns raised by government entities about retaining unnecessary amounts of non-pertinent e-mail (such as duplicate copies of e-mailed newsletters, etc.), provision can be made at 138.17 subd. (1)(b)(4) to specify certain specific categories of records that would not be subject to retention.