How long should governmental agencies be required to retain emails before purging them? Longer than you might first think.
A measure working its way through the Minnesota Senate would require schools, cities, townships, counties, etc., to retain electronic records for at least 18 months. That certainly would be better than a mere year, as one House lawmaker proposes, but 18 months doesn't cut it when you consider how long it takes governments to act on some issues.
Democracy works slowly. While that frustrates some people, a deliberate, transparent process provides the best foundation for representative government. Often, important decisions take years — not months — and then subsequent corrective actions follow.
Senate File 123 would update Minnesota Statute 138.17 to define an electronic record as "any communication whose creation, storage, transmission or access requires the use of an automated information system or a similar electronic device. An electronic record includes the content of the communication, transactional information related to the communication, and any attachments to the body of the communications message."
Because emails and texts have become norms in communication today, the state needs a law to ensure that governments operate with full disclosure, which is why we draw attention to SF 123 during national Sunshine Week: Your Right to Know.
The Minnesota Newspaper Association, which is monitoring the electronic records debate, notes that talks to date on Sen. Ron Latz's bill vividly demonstrate how complex this issue is and how difficult it will be to develop a coherent and workable state policy. This is primarily because emails contain so many different kinds of information.
Here are two examples:
• Emails fire back and forth until government officials agree on a meeting date and then they notify the public. Members perhaps could delete that email once the meeting is scheduled, provided they didn't discuss the agenda item(s). Without retaining the emails, however, they can't refute accusations of an Open Meeting Law violation.
• County commissioners recently approved a hog feedlot between Zumbrota and Goodhue, but the battle is headed to the Minnesota Court of Appeals. Legal battles last for years, so the county should retain every email on this subject.
One problem with Senate File 123 is that the 18-month countdown to deletion would start from the date the electronic record is created.
Consider the current discussion before Red Wing Port Authority, City Council and the Advisory Planning Commission on a potential buyer of the vacant Sarah's restaurant site. The city is offering a $84,000 finance package to an unconfirmed retailer. What if something goes wrong or someone issues a challenge? What if everything goes right ... but some important document sent as an email attachment disappears because a software program triggers an automatic 18-month erase button?
There are dozens of local issues that go back three, six and a dozen years. Despite best intentions, governments occasionally end up in litigation to resolve them. This brings in the factor of Minnesota's various statutes of limitations. There are few and far between with just an 18-month window. Plus finding the basis for litigation or defending it takes considerable time.
Minnesota would best serve citizens with a lengthy electronic records retention law designed to ensure open government continues in our state.