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Montana might soon preserve the emails of some top officials for decades, or even permanently, as has long been practice for their letters, papers and other public records.

“We’re a civilization in motion in terms of information, managing massive amounts of information that didn’t use to exist,” Secretary of State Corey Stapleton said. “We’ve changed the way government communicates to the extent the old ways are becoming obsolete about once a decade.”

A series of stories by Lee Newspapers revealed earlier this year that state employees were inconsistent in following Montana public records laws when it came to email. State policy provided a "10,000-foot view" of what was required — treat emails like any other public record — but with little practical guidance on how and when to store them, said Deputy Secretary of State for Records and Information Management Joe DeFilippis. And the only mechanism to enforce compliance is for a records requester to file a lawsuit.

Governments of all sizes in the United States have struggled with how to manage digital information in a way that protects access to public records, a right enshrined in the Montana Constitution.

The issue became a state conversation in 2016 when a lawsuit revealed that all emails of Gov. Steve Bullock and his top staff were deleted as he transitioned out of the attorney general’s office. This year, the nonprofit Campaign for Accountability sued Montana and Sen. Jennifer Fielder for failing to release emails about state business she sent from a private account.

With social media and text messages, Lee Newspapers similarly found inconsistent compliance with state policy, if guidance existed at all. Last month, Bullock became the first Montana governor to make some of his text messages public in response to a records request, but his office has so far refused to recover and release texts sent by his budget director. This week, Bullock staff said they still are reviewing if they have a legal obligation to do so.

“This is something the Legislature, as well as others, have to decide,” Bullock said. “Is it (worth) the cost for retaining every email? … What is a public record? At what point does it make sense to draw that line?”

Currently, state law and a string of Montana Supreme Court opinions say everything in a fixed format and retrievable is presumed to be public record unless the government can clearly demonstrate an individual’s privacy exceeds the merit of public disclosure. That has traditionally meant things like health records and Social Security numbers are not public, but nearly everything else is. Content determines how long it must be saved.

Since late 2016, the State Records Committee has discussed how best to update the state’s email guidelines and has listed policies for other digital communication tools among its next priorities. The group of record managers, IT professionals, archivists, agency heads and attorneys is tasked with providing guidance to the executive branch about best practices for records management and reviews requests to destroy records. Although it wields soft power to start conversations and make recommendations, ultimately changes can only be made through policies and laws that must come from the governor, secretary of state, or the Legislature.

At the Records Committee's June meeting, Committee Chair DeFilippis announced they would focus on developing “a capstone approach” for emails, similar to the current practice of federal agencies. The rough idea is that the messages of top officials — like governor or department director — would be saved the longest, division heads for a few years, and lower-level employees for even shorter periods.

The committee and Department of Administration also have proposed automating the process to minimize human judgment about what to save, for how long and where. The current state email system can automatically archive all emails in a central location, and each agency can set retention rules based on individuals' jobs.

Of the 36 major units across the executive, legislative and judicial branches, 11 had elected to activate that feature in the last three years. A list of which departments was not available last week, nor was the Department of Administration able to say how many used job titles to set storage rules.

The archiving tool was rolled out to all of Montana government on July 1. If the proposed capstone policy is adopted, it might require each agency to use role-based retention rather than a blanket policy.

A weakness in the process, however, is what happens to the archival files after an employee leaves state government or switches jobs.

Currently, emails are maintained for 30 days after an employee’s departure. Their manager is sent several email reminders to review the archive for records that must be preserved and to find a new place to store them. In practice, Lee Newspapers found that most state agencies did not save any emails after the 30-day period.

One possible fix discussed by the Records Committee would be to require state employees to earn training certificates that demonstrate their agency’s records manager has taught them about their responsibilities and about practical tools for following state records law.

Even if Montana’s email policy changes, it would not apply to the Legislature, which sets its own rules. It also would not capture other types of digital messages, such as texts.

DeFilippis said some people have told him they are concerned about the capstone approach because it moves away from using a record’s content to decide how it should be handled. He admitted the draft policy is not perfect.

“It’s not a solution. It’s a Band-Aid to say we’re taking steps toward a better solution,” he said.

While the Department of Administration has been coordinating with the State Records Committee, Bullock said he has not yet personally reviewed the proposal and declined to discuss its merits.

A timeline has not been set for implementing the new policy. The State Records Committee meets again this fall.

Some members of the committee, as well as Stapleton and Bullock have suggested the policy might not be enough. They say, to varying degrees, that legislators might need to tweak Montana law to clarify the definition of a public record.

“As technology has changed over the years, that’s all a little bit grayer,” Bullock said.

The Montana Constitution actually makes the matter black and white, said Helena attorney Mike Meloy, a public information law expert who volunteers for the Montana Freedom of Information Hotline and is representing the Campaign for Accountability in its public records lawsuit against the state.

“Although text messages and emails did not exist when the Constitution was adopted they are clearly government documents and the legislature properly included them within the scope of the right to know. And, if they serve as a road map to permit the public to know why a particular decision was made, then that's an important piece of the fabric of open government,” Meloy said.

In March, Jeff Hindoien, Stapleton's chief legal counsel, similarly cautioned the state Records Committee when some members suggested limiting the types of files retained either through policy or law. 

“People have the right for public information. We can’t cavalierly say we’re not going to make it a public record,” he said. “There would be legal recourse.”

State leaders have raised multiple other ethical and legal questions while debating state email policy and open government laws:

Should state law allow the public access to communications about state business that were sent from personal email accounts, personal phones or in private Facebook messages?

Should the state charge higher fees of people requesting public records?

Are security risks or corruption temptations created by centralizing the storage of all state emails?

Is it legitimate for national political operatives to use Montana’s open government as a tool to dig up fodder for attacks on campaign opponents?

Stapleton wondered: Should the scope of Montana’s law be restricted somehow to better balance the intent of transparency with the political and fiscal costs of storage?

“We have a pretty quiet warehouse full of boring stuff. You’re trying to prove a point and you’re making like Sherlock Holmes and smoking guns, but for 99 percent of the stuff it’s a huge, boring, growing problem. We create so much information on a daily basis that didn’t used to exist. We don’t need to save all of it,” Stapleton said to a reporter.

He later added: “Since 1889, we’ve never been able to see what the budget director and key legislators were talking about because they were having coffee or meeting in the basement and had secret handshakes. Our state has still thrived.”

Meloy pushed back against the suggestion that some requests for public information are more legitimate than others or that some types of records should be exempt from state law out of convenience even though their content is about public business.

“The right to know is designed to permit the governed to obtain information about how those doing the governing are acting. The public can then make up its own mind about whether it wants to keep the person in office," he said. "Information is the fuel that makes a democracy work.” 

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