How Much Email to Keep? Six-Month Destruction Frustrates Transit IG – And Echoes Similar Plan Nixed Years Ago in D.C.

Fritz Mulhauser | May 23, 2023 | Last modified: May 28, 2023

The Inspector General of Washington Metropolitan Area Transit Authority, the local transit agency, can’t investigate thoroughly because of a blanket internal policy of discarding all emails older than six months, according to statements of a deputy director, James S. Smith, reported Saturday (20) by Justin George in the Washington Post. 

That agency policy, George wrote, “has long frustrated Smith and other OIG investigators, who say years of emails that might shed light on two of Metro’s most important safety investigations in recentyears — the strength of the transit agency’s cybersecurity defenses and a wheel defect plaguing Metro’s troubled 7000-series rail cars — are unavailable to them and the public.”

The D.C. Council rejected the same idea 16 years ago after then-Mayor Adrian Fenty ordered automatic six-month-destruction in July 2007 (effective immediately), with a revised version following that September with more careful exceptions for “compelling need” and litigation, effective in January 2008. 

Then-Council member Carol Schwartz (five-time mayoral candidate over the course of nearly 30 years and four-term Republican at-large representative) introduced legislation to scuttle the order and make email subject to the same etention as any other record. The day she announced a December hearing, Mayor Fenty withdrew his order.

Schwartz’s bill passed unanimously, and D.C. government emails have been stored ever since. At the bill’s hearing, Attorney General Peter Nickles assessed the cost of the retention policy as “huge.” Still, James McLaughlin, attorney for the Post and the Maryland-Delaware-DC Press Association (and now Open Government Coalition board member) testified in support with others from the public and legal community. The committee report is here.

The Council action (Law 17-175) amended D.C. public records law to end executive branch adventuring on the subject. The text makes clear a general policy of indefinite storage of all records, including emails, until destruction only according to approved schedules. And the Council directed unambiguously that “no electronic mail shall be deleted or destroyed until new rules and regulations for the retention of electronic mail are submitted to and approved by the Council.” D.C. Code § 2-1706 (a-1).

D.C. officials have continued to suggest problems with the indefinite storage rule:

• In annual reports in 2018 and 2019, the Chief Data Officer recommended a “reasonable” retention period be set, as the increasing volume of mail (estimated then at 298 Terabytes) entails rising storage costs and “cumbersome” (delayed) Freedom of Information Act searches across the multiple servers needed.
• And the Board of Ethics and Government Accountability, which includes the Office of Open Government, picked up the thread in a 2021 Best Practices Report urging the adoption of the Chief Data Officer’s repeated recommendation. 

According to the Post, officials within WMATA have second thoughts, and General Manager Randy Clarke has ordered a review of the rule.

Data storage costs drop each year using the cloud and better devices, so that can’t be a significant driver, nor is efficiency entirely persuasive, especially if the drastic destruction results in faster searches of a skimpy body of records. With these mixed facts, it’s unsurprising that other governments cope differently with the same issue (the Post found only the BART system in the San Francisco Bay Area with a drastic email destruction approach).

Federal agencies keep emails according to a seven-year schedule (more for “Capstone” officials who are high in an agency’s organization chart and responsible for agency and program policy- and mission-related actions)

New York City (with ten times the employees of DC) directs non-policymakers to retain their email for eight years; policymakers must do so indefinitely.

Longstanding issues like this suggest the need for a wide-ranging review of District of Columbia records management in light of modern technology and in a discussion that links government efficiency and public information access via FOIA and archives. No executive office embraces all the issues involved, nor any Council committee, so the D.C. Open Government Coalition has been for several years recommending a task force or commission of executive and legislative branches of the D.C. government, community, and experts. Discussions with legislators and agency officials will continue later this year.

If you have ideas about culling or keeping D.C. records, write the Coalition at info@dcogc.org.