NASA orders all e-mail destroyed

NASA has directed its centers to destroy all electronic mail older than 60 days a policy that many say does not conform to National Archives and Records Administration (NARA) regulations and may raise other legal questions.

NASA's policy came to light after last week's World Wide Web posting of a May 21 e-mail from Jack Garman chief information officer at Johnson Space Center. The memo detailed the center's plans to program its e-mail system so that it automatically would erase all stored e-mail messages after 60 days. According to Garman's e-mail NASA and JSC policy characterizes e-mail as media similar to phone calls and faxes that can communicate information already of record but cannot be an official record itself.

"Because all e-mail can be the target of a number of public and legal disclosure instruments and as the government's definition of `records' is difficult to interpret and this policy is difficult to enforce the agency has further stipulated that all e-mail files (central store only) [that] are older than 60 days must be erased automatically " Garman's e-mail stated.

Don Andreotta deputy CIO of operations at NASA said NASA's policy precludes employees from using e-mail for official correspondence and centers are responsible for their own e-mail management policies.

"NASA does not use e-mail for official business " Andreotta said. "Where that communication is used for official purposes the individual is supposed to download it and make a hard copy. NASA is in compliance with requirements to ensure that we withhold and protect federal records. We believe we are in compliance with NARA directions in this area."

Kenneth Thibodeau director of NARA's Center for Electronic Records said he had never heard of another agency with a policy that declares that e-mail was not being used to conduct official business or that provides for its automatic destruction.

"If you're not using e-mail for the conduct of official business then what would justify spending taxpayer money on it?" Thibodeau said. "If there are any records on those systems that are not otherwise preserved they have the responsibility to preserve those records."

Rules issued by NARA in 1995 did stipulate that e-mail could constitute a federal record and that agencies are required to "put into place policies and procedures that ensure that e-mail records are identified and preserved. If agencies are creating and receiving e-mail messages that meet the definition of records in the Federal Records Act and most agencies that commented agreed that they are then they must have a program in place that preserves these records for the appropriate period of time."

In addition a 1993 ruling by U.S. District Court Judge Charles Richey stipulated that e-mail messages are official records and all agencies must preserve them. The case surrounded the right of the White House to destroy electronic records from the Reagan and Bush administrations regarding the Iran-Contra policy.

Scott Armstrong the plaintiff in the suit to prevent the White House from destroying e-mail messages said last week that Richey's ruling would prevent NASA from destroying e-mail without first doing an inventory to determine if any of the mail contains a federal record.

"They can get rid of it if it is not a federal record but they have to make a determination if it's a federal record " Armstrong said. "You just don't know when someone is going to send you something of official business. When somebody goes to the lengths they are going to to destroy it...it indicates that there is a problem."

Armstrong added that Garman's written comment that "e-mail can be the target of a number of public and legal disclosure instruments" is "essentially an admission that these are materials that can rise to records status therefore let's destroy them."

Disposal of all e-mail without identifying content for possible federal record content could be illegal said Michael Tankersley senior staff attorney with the Public Citizen Litigation group a coalition of public-interest groups historians and researchers that has filed suit against NARA over a policy that allows an agency to destroy e-mail after paper copies of those records are printed out.

"Unless they have authority from the National Archives for that policy it's illegal " Tankersley said. "You have to get the approval of the archivist for whatever your policy is of disposing of [e-mail]."

Timothy Sprehe president of Washington D.C.-based Sprehe Information Management Associates Inc. said that NARA regulations prohibit agencies from widely declaring e-mail as not meeting federal record status just because the content is in electronic form.

NASA is "doing something that is not permissible " Sprehe said. "What do you do if a member of the public sends you an e-mail that is a record? That flies in the face of the Armstrong case which is that electronic mail may be records and they have to be treated as records. They can't do that. They can try but they won't get away with it in court."