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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.
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.
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A previously unpublished memo outlining the policy raises new questions about the state's stated rationale for its deletions policy.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 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 to ever be 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.
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.
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 are public records) 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.
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.
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 for before the 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.

Reader Comments

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  • identicon
    Rich Kulawiec, 14 Aug 2014 @ 2:52pm

    This is a trivial issue to solve

    provided that workers actually use the email system that they're supposed to and provided the people running that email system have baseline competence in the field. This isn't a new or novel problem, nor does it require elaborate/expensive software: there are any number of open-source tools that can readily be combined to make a serviceable system. (One example out of many: grepmail, which is an enormously powerful tool for searching email by sender, recipient, subject, date range, or content.)

    The problem here isn't that this is hard: the problem is that both users and system admins are working overtime to conceal and/or dispose of the public's property in direct contravention of both the spirit and the letter of the law.

    reply to this | link to this | view in chronology ]

  • icon
    ChurchHatesTucker (profile), 14 Aug 2014 @ 3:19pm

    Oh cool

    So, any of *our* emails over ninety days old are free and clear. Right?

    reply to this | link to this | view in chronology ]

  • icon
    connermac725 (profile), 14 Aug 2014 @ 4:10pm


    I bet the NSA has copies going back past the 90 for them

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2014 @ 6:58pm


    This is honestly something I would have expected from the UK government...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2014 @ 9:02pm


    I have had the same job for 11 years.
    The only email I delete is SPAM.

    11 years of email takes up only a few GB of space and is easy and fast to search. ( we use Google apps, not much different than office 365 )
    Sure there are embarrassing things in my email, I am human and make mistakes. But having access to 11 years of knowledge has saved me lots of time and hassle and will be invaluable to my eventual replacement.

    The ONLY reason to delete email is to hide something. Any other excuse is a lie.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 15 Aug 2014 @ 8:03am

      Re: lies

      This. I have almost (mistakes happen) every non-spam email I've sent and received in the over 20 years that I've been active on the internet. By byte count, it's not that much data. Easily manageable.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2014 @ 6:58am

    Curses! FOILed again!

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 15 Aug 2014 @ 12:05pm

    Guess who has totally lost any chance at being a presidential nominee for the dems.

    reply to this | link to this | view in chronology ]

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