To delete or keep: E-mail is problem

Hold it right there, pal.

I can see that finger quivering over the "delete" button. But you'd better think carefully before you zap that e-mail message into cyberspace.

Rules requiring and regulating the retention of e-mail are proliferating, almost daily it seems. And businesses and government entities at all levels are still struggling with what and what not to keep.

Congress handed accounting firms stringent new electronic record-keeping rules in the wake of the Enron scandal. And just this past week, the National Archives announced that it is poised to pay two firms more than $20 million to design an electronic records archiving system.

That's just the design phase. The actual building of the system will be worth hundreds of millions more.

"The entire records management profession is grappling with how to handle e-mail" and other electronic records such as Web page content, word processing documents, spreadsheets and the like, said Salt Lake County records manager Terry Ellis.

Grapple with it the wrong way and you'll pay. Prudential Insurance was fined $1 million in 1997 for deleting e-mails that it shouldn't have. Then-governor Mike Leavitt was sued in 2002 for routinely deleting his e-mails. The Legislature has attempted to come to grips with what to save and what to toss, with mixed results.

"Everyone is so focused on how to handle e-mail because it's so pervasive," said state archivist Patricia Smith-Mansfield.

Smith-Mansfield's department has been trying to come up with a policy governing e-mail retention for two years, with no conclusion so far. Salt Lake County has been doing the same thing almost as long.

To be fair, it's not as easy as it might seem: An explosion of electronic communication has complicated the already complicated tangle of state and federal laws regarding record retention.

Consider the nature of e-mail. Is it akin to a phone call — fleeting and ephemeral — or more like a written letter — substantial and fixed?

"There are still a lot of people who tend to think of e-mail as just a communication tool, like a telephone," Ellis said. "But it can generate a record, too."

Another problem is that the courts have ruled that "meta-data" on electronic records is part of the record and must be kept too. Meta-data consists of things such as when and by whom the record was created, who saw it and what servers it has been on or sent to.

There are almost as many different e-mail record-keeping policies as there are companies and government agencies. Salt Lake City employees, for example, may delete e-mail that is personal or routine (what experts refer to as "transitory"), but they must save anything relating to programs, policies or decision making.

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