Easley e-mail policy backed

Scholar: Practices don't violate law

RALEIGH -- A respected legal scholar said Friday that the Easley administration's policy of allowing workers to delete e-mail messages when their "reference value" ends is lawful.

David M. Lawrence, a professor of public law and government at UNC-Chapel Hill, is a member of the group appointed by Gov. Mike Easley to review his administration's handling of e-mail.

"I believe that the guidelines conform with and do not violate the public records statutes," Lawrence wrote in a letter to the panel's chairman. "That being the case, a public employee who destroys e-mail in accordance with the guidelines also conforms with and does not violate the public records statutes."

Lawyers for the N.C. Press Association and the N.C. Association of Broadcasters disagreed with Lawrence. They said in written arguments that the policy is illegal, and they urged Easley to rescind it.

"The tradition of open government in North Carolina has always included the obligation to archive government records for a length of time sufficient to allow the public and press a meaningful opportunity to request and inspect records made and received by government in connection with their government's business," wrote John A. Bussian, lawyer for the press association.

"The advent of electronic communications has not altered this tradition in any way."

The panel members appointed by Easley appeared to accept Lawrence's conclusion that the current policy is legal.

"We don't need to reinvent the wheel," said Ned Cline, a former newspaper editor from Greensboro. "We just need to tweak it."

But Cline also pointed out that the panel was created because of evidence that high-ranking state officials had been deleting e-mail regardless of content, counter to both the policy and the law.

State Department of Transportation spokesman Ernie Seneca, for example, told a reporter that he routinely deletes all his e-mail.

The current dust-up over public records began last month when Debbie Crane, the former spokeswoman for the Department of Health and Human Services, said she had been instructed to delete all e-mail sent or received from the governor's office in an effort to destroy records that could be requested by the public.

Notes taken by two other public information officers during meetings with Easley's press staff appear to back Crane's claim.

Ten North Carolina news organizations, including The News & Observer, have sued the Democratic governor over his administration's deletion of e-mail, which they say violates the state's public records law.

George Bakolia, the state's chief information officer, said Friday it is possible to upgrade the administration's existing computer servers to archive e-mail for years, but he was not prepared to say how much that might cost.

Currently, the system backs up e-mail messages only once each night. Messages dumped before they are saved are gone forever. Even those backed up are only stored for 30 days after an employee trashes them.

Bakolia presented two technical scenarios. The first would automatically save all of the more than 1 million e-mail messages sent or received by executive branch employees each day. The second would archive only the e-mail the employees choose to save.

A system giving individual workers the discretion to erase messages they judge no longer relevant is not going to prevent employees from doing "something devious," Cline said.

However, a majority of the panel appeared to indicate support for trusting state workers to do the right thing. All appeared to agree more training would be needed to teach the more than 61,000 executive branch employees with e-mail accounts how to properly interpret the guidelines dictating when it is appropriate to trash messages.

Last year, 610 state workers attended voluntary workshops on public records offered by the state Department of Cultural Resources. At that rate, it would take about a century to reach all who need the training.

"I have been in state government longer than there has been e-mail," said panel member Bryan E. Beatty, the state secretary of crime control and public safety. "I have to confess that yesterday was the first time I have attended a training session."

In a letter to the panel, State Auditor Les Merritt said it is essential to retain e-mail messages.

"They tend to confirm the occurrence of actual events and provide a unique window into the operation of state government," wrote Merritt, a Republican who was not among those appointed to the e-mail group.

"For the Office of the State Auditor, e-mails serve as information in the audit trail. Their retention aids our ability to carry out all of our audits including the vital role of uncovering fraud, waste and abuse in state government."