Legal Requirements: Managing Your UWSA Email Account

1. Legal Requirements: Managing Your UWSA Email Account Laura A. Dunek, J.D. Records Custodian, UWSA Office of General Counsel University of Wisconsin System Administration

2. Managing Email • How would you define the term: “Managing Email”? • Why do you think it is easy to create and receive email, but difficult to manage the large volume of email that results? • What would make it easier for you to manage your UWSA email account? • What requirements do you think we have to follow as state employees?

3. PRIVATE SECTOR: The Difficulty and Cost of Managing Email • Employees Create Inappropriate Email Messages • Lack of Guidance • Needless Retention of Email

4. PRIVATE SECTOR: The Difficulty and Cost of Managing Email • EXAMPLE: Employees Create Inappropriate Email Messages • Chevron Oil v. Female Employees 1. The Email: “25 Reasons Beer Is Better Than Women” 2. The Damage Award: $2.2 million

5. PRIVATE SECTOR: The Difficulty and Cost of Managing Email • EXAMPLE: Lack of Guidance and Needless Retention of Email • ENRON LAWSUIT RESULTED IN: ۩1.6 million emails from Enron employees were posted on a Federal Government website. An average of 8,000 messages per employee. ۩Emails Contained Embarassing Content: “So…You Were Looking for a One-Night Stand?

6. Private Sector Compliance • Consultants • Software Packages

7. EXAMPLE: Rohm and Haas • Consultant: Two Year Contract at approximately $100,000 per year. • Vendor Software for Records Management: Cost in excess of $250,000 • RESULT: Four Email Folders: Ongoing Work Projects, Archival, Drafts, Personal Archival Migration: Business records transferred from email account into word processing files for protected retention.

8. Public Sector: Most Complex Arena for Managing Email • State employees have statutory requirements, which are not applicable in the public sector.

9. Wisconsin’s Efforts to Provide Guidance on Email Management • Department of Administration: Failed effort to provide guidance for managing electronic mail. • Public Records Board: • Shelved for two years the DOA’s effort to provide guidance to all state agencies on email management. • Recently completed a survey of state agencies to assess how electronic records are currently managed. • Only 21 of 59 state agencies replied. • Only 12 of 21 provide any form of guidance to their employees.

10. UWSA Email Management UWSA General Records Schedules for Correspondence: Achieve the same result as Rohm and Haas—effective email management system—and also meet Wisconsin Statutory Requirements.

11. Wisconsin’s Records StatutesWis. Stats. §§ 16.61 and 19.32 • What is a “public record”? • Why is it important to properly manage public records?

12. Wisconsin’s Records Management Statute Wis. Stats. § 16.61 • Public records include all materials, regardless of physical form or characteristics, made or received by any state agency in connection with the transaction of public business.

13. Wisconsin’s Public Records StatuteWis. Stats. § 19.32 • “Record” means any material regardless of physical form or characteristics, which has been created or is being kept by an authority and upon which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved.

14. Wisconsin’s Public Records Statute • Substance, not format, is determinative. • Therefore, your email is often a public record.

15. PUBLIC RECORDS BOARD: Powers and Duties • The Public Records Board shall safeguard the legal, financial, and historical interests of the state in public records. Wis. Stats. § 16.61(3)(a) • All public records made or received by or in the custody of a state agency shall be and remain the property of the state. Those public records may not be disposed of without the written approval of the board. Wis. Stats. § 16.61(4)(a)

16. PUBLIC RECORDS BOARD: Powers and Duties • State agencies shall submit records retention schedules for all public records series in their custody to the board for its approval within one year after each record series has been received or created…Wis. Stats. § 16.61(4)(b)

17. Records Management: Enforcement • Department of Administration: “The department shall establish and maintain a records management service to periodically audit the records management programs of state agencies…”Wis. Stats. § 16.62(1)(c)

18. Records Management: Enforcement and Compliance • Public Records Requests, primarily from media outlets • Wisconsin Legislature • Legislative Audit Bureau • Litigation • The University of Wisconsin System Administration

19. UWSA COMPLIANCE REQUIREMENTS COMPLIANCE DEADLINE: July 1, 2006 ۩Start Date for Internal Audits, which will be performed by OIS. ۩Management Team will oversee compliance.

20. Records Management: The Basics 1. Is it a record? 2. If it is a record, then how long do I have to keep it?

21. Is It a Record? • Are all of the materials held by a University employee subject to Wisconsin’s Records Laws?

22. Non-Records Under the Records Management Statute Wis. Stats. § 16.61 • DUPLICATES: “Record” does not include duplicate copies of materials, the original copies of which are in the custody of the same state agency and which are maintained only for convenience or reference and for no other substantive purpose. • NOTE: The public records law includes duplicates because they: “have been created or are being kept by an authority.”

23. What Is Not a Record: Wis. Stats. § 16.61 • Notices or invitations received by a state agency that were not solicited by the agency and that are not related to any official action taken, proposed, or considered by the agency. • NOTE: The public records law includes notices and invitations because they: “have been created or are being kept by an authority.”

24. What Is Not a Record: Wis. Stats. § 19.32(2) • “Record” does not include materials that are purely the personal property of the custodian and have no relation to his or her office. • “Record” does not include drafts, notes, preliminary computations and like materials prepared for the originator’s personal use.

25. What Is Not a Record: Wis. Stats. § 19.32(2) • “Record” does not include drafts, notes, preliminary computations and like materials prepared by the originator in the name of a person for whom the originator is working.

26. Records Management: Non-records 1. Destroy non-records as soon as they are no longer needed in order to complete a work project. 2. UWSA’s Email System is at 92% capacity: 20% of UWSA employees occupy 80% of the space on the server.

27. Records Management: Properly Manage Duplicate Copies 1. Everyday You are a Records Custodian: When you create or receive a record on behalf of the University of Wisconsin System Administration. 2. Team Projects: Who is the Records Custodian? ۩ Assign a records custodian for each work project. ۩Only the designated records custodian must keep emails received on behalf of UWSA. All others may delete the duplicate emails they receive.

28. Managing Your Email: UWSA General Records Schedules FOUR CATEGORIES OF EMAIL 1. Business Related Correspondence: Historical 2. Business Related Correspondence: Litigation or Audit 3. Business Related Correspondence: Routine 4. Business Related Correspondence: Short- Term

29. Business Related Correspondence: Historical • Email correspondence is historically significant when it affects the current or future course of the University of Wisconsin. • Retention Period: Permanent After no more than 20 years documents must be transferred to University of Wisconsin Archives

30. Business Related Correspondence: Historical • EXAMPLE

31. Business Related Correspondence: • Correspondence that is directly connected to the transaction of public business, which is undertaken and performed by the University of Wisconsin System Administration employees. • Business related correspondence may: (1) establish policies, guidelines, or procedures; (2) certify a transaction; (3) become a receipt; (4) perpetuate or formalize business activities of the University of Wisconsin System; or (5) serve as a helpful resource for completing the future business of the University.

32. Business Related Correspondence: Audit or Litigation • Business related correspondence may be necessary for audit or litigation. • Retention Period:After a business related project is completed, litigation or audit correspondence relating to that project should be retained for a minimum of seven years.

33. Business Related Correspondence: Audit or Litigation • EXAMPLE:

34. Business Related Correspondence: Routine • Routine correspondence does not: establish policies, guidelines, or procedures; formalize the business activities of the University of Wisconsin System; and it is never needed for litigation or audit purposes. • Routine correspondence is directly connected to the transaction of business, but it is needed only to: (1) assist in administering a business project, or (2) communicating routine information to project team members. • Retention Period: One year

35. Business Related Correspondence: Routine • EXAMPLE:

36. Business Related Correspondence: Short-term Short-term correspondence is required only for a limited time to informally communicate information or complete temporary activities. Short-term correspondence has no business value after receipt and review, would not be filed in a records retention system, and should be destroyed when no longer needed by a University employee.

37. Business Related Correspondence: Short-term • Short-term correspondence is not needed for: statutory, legal, fiscal, administrative, or archival purposes; nor in the future in order to complete the business of the University. Moreover, short-term correspondence does not establish policies, guidelines, or procedures, certify a transaction, become a receipt, nor perpetuate or formalize business activities.

38. Business Related Correspondence: Short-term 1. Messages with short-lived or no administrative value. 2. Messages created or received as part of a distribution list or received from listservs and other internet sources, solely for convenience or reference. 3. Routine requests for information or publications and copies of replies, which do not require administrative action, special compilation, or research to reply. 4. Quasi-official notices including memoranda and other records that do not serve as the basis of official action, such as notices of holidays, blood drives, charity or bond campaigns and similar records.

39. Business Related Correspondence: Short-term • RETENTION PERIOD: Two months or destroy when no longer needed, whichever is sooner • EXAMPLE:

40. File Management for Electronic Correspondence • Entire content of the message, including the chain of communication from previous authors. • Complete Metadata: To: From: Subject:

41. Appropriate Content for Electronic Correspondence • Professional tone • Related to the business of the University • Before pressing the “send” button, scrutinize the content of your email messages. • Every email message potentially could be printed within a news story, or read on air by a news anchor.

42. UWSA Email: The Importance of Properly Managing Your Email • Feds Get Records In Travel Case More Information Sought • The Capital Times • FRONT PAGE • Saturday, February 11, 2006