Ruling poses questions about electronic records

What is the status of deleted e-mail messages under the Freedom Of Information Act?


That is, can a deleted e-mail message be obtained through a FOIA request?


That is one of many problems presented by the still-new institution of electronic mail.
British Columbia information and privacy commissioner David Flaherty's decision of
December 1995 is instructive, if somewhat unsatisfying.


The question concerned whether deleted e-mail messages contained in backup tapes are
actually records under the provincial law and if so, if there is an obligation to retrieve
them in response to a request. Flaherty answered both of these questions in the negative,
and both answers are troublesome.


The agency that denied the request argued with some force that there was no index to a
backup tape, that the tape was a transitory record, and that retrieval was difficult and
expensive.


The entire mail system would have to be recreated to search for the messages requested.


Of course, there was no question that
e-mail is a record under the British Columbia FOI law. The issue was whether a deleted
message had to be retrieved. The law requires an agency to create a record if it can be
done with normal equipment and expertise and not unreasonably interfere with operations.
Flaherty decided that retrieval of erased e-mail was not required under this provision. He
based his conclusion expressly on current technological capabilities, with recognition
that changing technology may produce a different result someday. Fair enough.


One problem, however, is that it isn't simple to categorize deleted e-mail. On some
systems, e-mail deleted midday, before any backup, is gone forever. Other deleted e-mail
is retained for varying periods on backups. Some deleted e-mail may remain in a user's
electronic wastebasket, not truly deleted until the wastebasket is emptied.


Depending on the system used, deleted e-mail may end up saved elsewhere on the network
or in erased but recoverable files stored locally on the user's PC.


Searching for and retrieving these different types of deleted e-mail requires different
degrees of effort and technical sophistication. The complexity makes it hard to propose a
simple rule, and Flaherty recognized this in a later order.


But the original decision went further. It also concluded that backup e-mail tapes are
not a record under British Columbia law. This is a conclusion that I find troubling in
terms of law.


If a record is beyond the reach of a freedom of information law, better retrieval
technology won't put it back within reach.


Deciding that any class of records is not subject to an access law is dangerous. It
took a lengthy legislative effort to overturn an American case that reached the same
conclusion for computer tapes.


I can't say whether Flaherty's decision will come back to haunt him. But his orders in
three cases dealing with deleted e-mail are informative and worth reading. Point your
browser to http://www.oipcbc.org/ and look for Order
73.


The same questions under American law would not be simple to resolve. The 1996
Electronic FOIA law added a parallel but narrower procedural exemption for a search that
substantially interferes with agency operations. Reliance on this exemption will require
detailed factual conclusions about the retrieval process.


The facts will vary from agency to agency, computer system to computer system, user to
user.


Policies governing deleted e-mail and erased computer files have implications for
access, evidence and privacy that affect the private sector as well as the government. For
the federal government, it would have been much better had the 1996 E-FOIA amendments
established a firm rule about retrieval of deleted mail and erased files.


Instead, we may someday face lengthy, messy and expensive litigation.


Flaherty's opinion has one wonderful Canadianism that is worth sharing. While
describing the capabilities of e-mail, Flaherty noted that it is possible to send a
message alerting everyone in an office that a moose has been seen in the parking lot.


Just what anyone is expected to do with the information isn't apparent to this
American. But it is clear, for the moment anyway, that a deleted moose-sighting message
isn't a record under British Columbia's FOI law.


Robert Gellman, former chief counsel to the House Government Operations Subcommittee on
Information, Justice, Transportation and Agriculture, is a Washington privacy and
information policy consultant. His e-mail address is rgellman@cais.com.


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