public records not mission impossible


People my age will certainly remember the opening of every episode of Mission Impossible.  Jim Phelps, the head of the Impossible Mission Force, would receive his team’s mission on what had to be the world’s tiniest reel to reel tape recorder.  The tiny little tape would then self- destruct in five seconds.  And for some reason, we viewers would get to see the tape go up in smoke.  We found that really entertaining.

But now, the IMF technology is part of the mainstream.   A new version of Gmail will have a built in expiration date.   Users will be able to set a timer that will automatically erase e-mails after a specified duration.

For the most part, this is fine.  But it’s potentially a big problem for public officials who use Gmail to conduct public business.   A message sent or received by a public official concerning public business is a public record.  How that public official chooses to transmit the message is beside the point.  So a feature that allows the public official to automatically destroy the record for sure violates the spirit of the public records laws as well as the letter of those laws.

Consider the City of Cincinnati.  Its record retention policy for City Council provides that correspondence (in paper or electronic form) must be retained for two years.   So if council members set their Gmail accounts to automatically erase messages at a point less than two years, they’d be violating Ohio law.  The specific law would be Ohio  Revised Code 149.351.   It prohibits the destruction of public records in violation of an applicable retention policy.  The penalty is $1000 per violation. Which means every deleted email would potentially cost the city $1000.

City Councils and other public bodies need to collect and archive electronic communications that discuss official business.  That statement is not subject to debate.  And it’s not an impossible mission.