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Can I Delete that E-mail? Digital Information Meets Data Practices

Side View Of Woman working at computer with e-mail and spreadsheet documents open on screenProvided by Data Practices Office, Minnesota Department of Administration

Date: April 2021

As technology continues to change the way government does its work, new questions always arise on how certain technology interacts with the Minnesota Government Data Practices Act (Minnesota Statutes, Chapter 13). Here is some practical advice for government entities in creating and maintaining e-mail.

Don’t treat every e-mail the same! As you’ll see from the fol­lowing suggestions, entities should consider the content of an employee’s e-mail when responding to data requests or deter­mining how long to keep them.

Understand and identify what is an official record. According to the “Official Records Act” (Minnesota Statutes, section 15.17), government entities are required to “make and preserve all records necessary to a full and accurate knowledge of their official activities.” Employees should work with their supervisor, manager, responsible authority, or data practices compliance official to understand what types of e-mails may be considered an official record. An e-mail from a grantee about equipment purchases, for example, may be an official record. It is important to remember that although any work-related e-mail is government data, not all e-mail is an official record that an entity is required to keep.

Be lean and efficient with use of e-mail. There are generally three categories of work-related e-mail.

  1. E-mail that contains data considered to be an official record.
  2. E-mail that serves an existing purpose for an employee to perform his or her work or for an entity to serve its customers, but not an official record.
  3. E-mail that are not part of an official record and no longer serves a useful work purpose.

E-mail in category 1 should be kept according to the entity’s records retention schedule. E-mail that fit categories 2 and 3 are government data, but not official records, and should be deleted when they no longer serve a useful work-related purpose.

Have policies in place to respond to data practices requests. Generally speaking, all e-mail sent/received by government employees within the scope of their employment is subject to Chapter 13. Statutory requirements for responding to data requests include the following :

  • E-mail must be kept in a manner easily accessible for conve­nient use (see Minnesota Statutes, section 13.03, subd. 1).
  • E-mail that contains not public data must be protected from unauthorized access (see Minnesota Statutes, section 13.05, subd. 5).
  • Entities must respond to requests for e-mail containing public data in an appropriate and prompt manner and within a reasonable time (see Minnesota Statutes, section 13.03, subd. 2(a) and Minnesota Rules, part 1205.0300).

Do you have a personal use policy? While most e-mail used by government entity employees is government data, e-mail of a personal nature may be exempt from the requirements of Chapter 13 if the entity has a policy to allow for the limited use of government e-mail accounts for personal use (see advisory opinion 01-075). For example, an e-mail reminder to the employee’s spouse to pick up milk.

Ensure proper redaction of e-mails. In responding to a data request, entities may find that certain e-mail contains both public and not public data. Entities must make sure they properly redact any not public data in e-mail in response to a data request.

Create a consistent policy on charging for copies of e-mail. Entities may charge the actual cost for providing e-mail in electronic form (i.e., forwarding an e-mail).* If an entity prints e-mail in response to a request, it may charge 25 cents per page up to 100 pages and the actual cost for copies over 100 pages. Remember that a requester may always inspect data for free. See https://mn.gov/admin/data-practices/data/rules/copy-costs/actual-cost/ for more information about charging for copies.

Ask if you need help. Be sure to consult with your entity’s responsible authority, data practices compliance official, records manager or legal counsel as necessary with questions about e-mail content, keeping e-mail and providing e-mail in response to a request. You may always contact the Data Practices Office at 651. 296.6733 or at info.dpo@state.mn.us.

* See “Actual Cost” page of Data Practices Office website for more about this.

This article originally published in the Department of Administration, Data Practices Office newsletter FYi, summer 2012. Reprinted with permission.

The information contained in this document is intended for general information purposes only and does not constitute legal or coverage advice on any specific matter.