In an open records request to a number of different elected officials I did recently, a few people replied that they had no records responsive to my request. HAD they had the records? Yes. The records were email and the elected officials I asked had deleted them. Were they deleted a long time ago? No. They had been deleted within the past 60 days.  Somervell County, according to Michelle Reynolds, uses the TSLAC retention schedule. I spoke with Erica Wilson of TSLAC last week and she told me that, generally, emails that deal with public business and/or financial matters are supposed to be retained for at least 2 years. Assuming this is so, then certainly ALL Somervell County elected officials should be preserving emails to be available in response to open records requests, and especially if those emails involve public business and or financial matters. If this is somehow unclear, then I believe it's the obligation of the Somervell County commissioners to discuss and clarify exactly which emails should be kept, how they should be kept, including archived, and what the policy should be to respond to requests. Simply leaving this hanging in the air for each possibly uninformed commissioner to deal with is not only unfair but does a disservice both to the elected and to citizens. 

Here's one example from elected official Andy Lucas, who is Somervell County Attorney. On Feb 29, 2016 I asked

I would like a copy, send back electronically as a PDF through email, of all emails that you have received or sent from January 1, 2016  through February 15, 2016 

Lucas replied on February 29, 2016 

If you can advise me what you may be seeking and narrow the scope of your request maybe I can help. Much of my email correspondence involves CPS and criminal cases containing privileged and/or confidential subject matter. Please let me know.

I replied

You can exclude any CPS/criminal cases. 

Lucas then replied at 9:25 am 

Is it possible for you to narrow your request? I doubt you are interested in Westlaw billing or Lions Club or things of that nature. If I know your inquiry it will save us both some time.

I saw Lucas in Judge Danny Chambers office later that afternoon and told him I was asking specifically for emails dealing with the bond payment. He told me verbally he had deleted the emails he had received about this. I emailed him at 4:57 pm

Just to verify and confirm our conversation today in which I narrowed down again that the subject of my inquiry is regarding the CO bond payment potential loan to be made by Somervell County to GRMC . You said you had deleted any emails that dealt with the bond payment, whether you are on the To line, the From line, or the CC line and thus have no emails responsible to my request. Yes? If not, please clarify

Lucas wrote back on Tuesday, March 1, 2015

Yes that is correct. I have deleted anything I may have received and I did not respond to anything. As I recall the only two emails I received I was cc’d in the Watts to Reynolds message and question from Judge Chambers to attorney Bruce Medley. As we discussed my only involvement was sitting in on meetings to determine if the county remained obligated on the bonds. Thank you for not putting me through the hassle. I certainly was not trying to conceal anything.

Presumably, the two emails in question were still in his deleted folder, but even if not, why is that okay? He deleted emails having to do with should-have-been public meetings regarding floating a loan from Somervell County to Somervell County Hospital District. And yet he kept other, more presumably frivolous emails such as Lions Club content. 

Another example is that two commissioners told me that they had deleted the emails from their IPAD. So, back to my original point, they did not know that the emails were supposed to be kept for 2 years. One commissioner didn't know how to get email from his Ipad to some other place, but surely he could have asked the administrative assistant that acts for the commissioners or someone in the IT department. A different commissioner told one of the commissioners he didn't have to respond to my specific open records request because the first one had already done so. Completely wrong. Open records request addressed to a specific person must be answered by a specific person, not sloughed off if it happens someone else sent the same content. The point isn't to collude and try to avoid answering a request, it's to individually answer the request, at the very least with a written reply to say there aren't any records responsive to that request. 

I don't believe that the county is *trying* to be corrupt, but they are effectively acting as if they don't have to be accountable to the public. The Somervell County Commissioners Court, including all commissioners and judges, should, in my view, discuss email retention and make a specific known policy that all should follow. This would avoid randomly and haphazardly deleting public records according to one's whims or ignorance. 

Update: I asked Erica Wilson of TSLAC about this. My question.

I am attaching 2 emails that were available via open records requests. Several of the people who are either on the TO or CC line did not preserve these emails, although they received them, and deleted them. I believe based that these emails, from our previous conversation, are most likely “public business” or “financial matters/transactions” and should have been retained according to TSLAC retention schedules that Somervell County voted to follow. I further believe that all who were on the To or CC line would be included in preserving these emails, individually. But I am not sure. I am requesting your opinion on whether it appears to you that these emails would typically be archived for X period of time or fall into one of the retention schedule categories, and if so, what would be the retention period?

I appreciate your taking the time to look.

Erica's reply.

As far as I can tell, the first message would be an invoice, which would be classified under GR1025-26a: Accounts Payable and Disbursement Records for a period of the end of the fiscal year of the date of the final payment + 3 years.  The second message would most likely be part of a bond administrative record, which would fall under GR1025-03a: Bond Records, which would be maintained permanently.  However, I do not know what other documentation was created for this, so it is possible that the information was duplicated elsewhere, which could affect the retention.

With records, a local government is only required to preserve one copy of each record.  A duplicate of a record is known as a convenience copy, and it can be disposed of whenever it ceases to have use to the local government.  For example, if I printed out a copy of meeting minutes to refer to, the original that I printed from might be the designated record copy that has to be maintained permanently, but my printed copy would be a convenience copy and I could dispose of it whenever I was done using it.  Designating a “record copy” gets a little more difficult when it comes to email.  Typically with email, the sender has the record copy and is responsible for maintaining it for the full retention period, so the people who the email is sent to are not responsible for maintaining their copy.  Therefore, the people who were sent the email or cc’ed on it do not have the record copy  and can delete their convenience copy as soon as it ceases to have value to them.

From a practical standpoint, multiple open records requests would have to be done with multiple people, if you were not sure who the person was that sent a particular email.