New York State Keeps Government Emails Out Of The Public's Hands With Its 90-Day Retention Limit

from the shredders-and-burn-barrels-have-nothing-on-automation dept

New York Governor Andrew Cuomo's office continues to do everything it can to prevent its emails from being accessed by FOIL (Freedom of Information Law) requests. As Justin Elliott of ProPublica reported earlier this year, Cuomo's office has been making use of personal email accounts to skirt FOIL requests.

Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.



I know because I got one myself. And three other people who interact with the governor's office on policy or media matters told me they have too. None of the others wanted to be named.

Last year, the state started deleting any emails more than 90 days old that users hadn't specifically saved — a much more aggressive stance than many other states. The policy shift was first reported by the Albany Times Union.



A previously unpublished memo outlining the policy raises new questions about the state's stated rationale for its deletions policy. What's more, the rules on which emails must be retained are bewilderingly complex – they fill 118 pages – leading to further concern that emails may not be saved at all.

The Office of Information and Technology Services declined to comment on the record. An official in the office said even though the state can store large quantities of email, it can still be difficult to manage.



"Just because you have a big house doesn't mean you have to shove stuff in it," the official said.

There is no internal or external watchdog to make sure the rules are being followed, [John] Kaehny [president, Reinvent Albany] said.



The state also doesn't have a standardized system for preserving emails that do have to be saved, according to the Office of Information Technology Services official. State workers can save their emails by printing them out, pasting them into Microsoft Word documents or placing them in a special folder in the email program itself.



"Everyone does it differently, and some people are still learning how to do it," the official said.

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This isn't all Cuomo's office is doing, though. It's also set its email retention bar incredibly low. With personal email accounts already removing a certain percentage of communications from the "responsive document" set, the governor's office has moved towards eradicating access to the rest, using an unusually short retention schedule. ProPublica again has the story The state's policy is supposedly predicated on storage limitations. But this was put into place as part of a move to Microsoft's Office365, which offers 50 Gb of storage per email user. And, as ProPublica points out, the state's version includes unlimited email archiving.Despite the reality of the storage situation (i.e, that it's not going tobe a problem), the state still automatically deletes emails when they hit the expiration date. When asked why the state does this when it's obvious it has plenty of email storage space, it delivered this nonsensical response.Yeah, but if this "big house" was actually purchased for you by the public to store stuff it might need later, the purchasers expect you to make full use of the storage space. What it doesn't expect is for you to throw out a large percentage of its belongings (government emails arerecords) every 90 days. Policies vary from state to state, with most email being held for two years minimum. Certain categories are held onto for a longer period of time, but rarely, if ever, are government emails given a shorter "sell by" date than the state of New York.Not everything disappears at 90 days. Some are supposed to be held onto for far longer, but as far as ProPublica can tell, there's no one in place to ensure the numerous and complex retention rules are followed.Email related to FOIL requests and litigation is supposed to be preserved indefinitely. But with de facto 90-day destruction in place, journalists and others seeking public records would need to know what they're searching forthe corresponding emails have even been composed. Government misconduct is usually discovered months or years down the road. By that time, most responsive emails will have long since been destroyed, especially when there's no one making sure possibly incriminating communications are retained.What's being touted as a solution to an email management problem looks an awful lot like an easy way to minimize the number of responsive documents that might be returned to a citizens' rights group or an investigative journalist. Ninety days isn't acceptable as a warranty period, much less a time frame for the retention of public records.

Filed Under: andrew cuomo, deleting emails, emails, foil, freedom of information, new york, transparency