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Use and Management

Most emails sent by TDCJ employees must be retained as state records

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Did you know that most emails a TDCJ employee sends while at work are state records that must be retained in accordance with the agency’s Records Retention Schedule? For record retention purposes, an email must be categorized based upon its subject and content. The majority of email most commonly falls into three types: administrative, general, and transitory.

An email may be considered administrative correspondence if it is instructional. This type of communication explains how to do something; its goal is to direct or alter how a job is performed. The retention period for administrative correspondence is three years. In contrast, an email that is informational and explanatory is typically classified as general correspondence; it simply conveys information. General correspondence must be retained for one year. Finally, an email may convey transitory information of temporary usefulness, such as deadline reminders, funeral notices, SECC fundraising activities or proposed meeting dates. Transitory email may be deleted when its purpose has been served. It is important to remember that not all emails will fit into the above categories and may have a different retention period, e.g., a decision memorandum, staff meeting minutes, policies, procedures and open records requests.

The author of an email is the custodian and is therefore responsible for its retention. Employees should consider creating electronic folders to categorize and retain emails according to the retention period under the appropriate record series in the Records Retention Schedule. Recent emails should be routinely stored or archived as prescribed in the records management plan established by the employee’s department. Purging or deleting emails should be handled as required by the retention period for their record series, and the final disposition documented.

Email may be subject to disclosure under the Public Information Act. When you send an email, do not write anything that you would not want repeated or published in the local newspaper. Read emails carefully before sending them. If you are angry when responding to an email, don’t send your response; save it as a draft and review it later. Do not send emails that criticize other parties, and do not send private information about yourself or others in email. Always ask yourself whether email is the most effective means of communication for the situation. Would a telephone call or a face-to-face meeting be more appropriate?

For the most part, emails must be limited to agency business. Executive Directive 02.01 (ED-02.01), Ethics Policy, prohibits the use of state property, including computers, for personal purposes. Although incidental use of an agency computer for personal purposes is allowed, regularly sending emails related to personal matters may be a violation of state law. For example, sending your spouse a short email explaining that you have to work late is permissible, but engaging in a series of emails about your summer vacation plans is not. It is best for employees to discourage family members and friends from emailing them at work.

Administrative Directive 15.07 (AD-15.07), Information Resources Acceptable Use Policy, provides guidelines for an employee’s personal use of information resources. It specifies that all emails stored on agency resources are owned by TDCJ and prohibits using emails for creating or transmitting offensive, indecent or obscene material. In addition, Executive Directive 15.11 (ED-15.11), Electronic Mail, specifies that emails should be used only to conduct state business and that there should be no expectation of privacy. It prohibits an employee from sending emails that are intimidating or harassing, for the purposes of political lobbying or campaigning, for personal benefit or for non-TDCJ solicitations. For example, TDCJ employees should not sell their daughters’ Girl Scout cookies through agency email.

On the legal side of things, agency emails are subject to release in preparation for federal and state civil trials. In 2006, the Federal Rules of Civil Procedure were changed to specify the disclosure of electronically stored information in litigation. Consequently, agencies have an obligation to identify and preserve electronic evidence when litigation is reasonably anticipated, as well as a duty to prevent its destruction. An agency need not provide discovery of electronically stored information from sources that are not reasonably accessible because of undue burden or cost; however, the agency from which the information is sought must show the undue burden or cost. Despite this burden or cost, the court may still compel discovery if the requesting party shows good cause. A court may not impose sanctions for failing to provide electronically stored information that was lost as a result of the routine good faith operation of an electronic information system.

Employee non-compliance with TDCJ policies and procedures could result in significant cost to the agency. In Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal., Jan. 7, 2008), the court imposed multimillion dollar sanctions for electronic discovery failures. Qualcomm was ordered to pay all costs incurred by Broadcom during the litigation, which was approximately $8.5 million. In addition, Qualcomm’s attorneys were reported to the California State Bar for ethics violations, and the court ordered Qualcomm to create a comprehensive electronic discovery program.

When litigation has been filed or there are reasonable grounds to anticipate that litigation will be filed, agency employees can anticipate receiving notice from the Office of the General Counsel (OGC). Upon receipt of such notice, employees must retain all information, including electronically stored information related to the subject matter, until further notice. The information must be retained in its original, electronic format.

Following agency directives ensures compliance with state and federal law. It also assists in preserving TDCJ’s defenses and minimizes the possibility of the imposition of sanctions in future litigation.

For additional information about email use and management, please contact the Office of the General Counsel, Executive Services, or the Information Technology Division.

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