Public officials must preserve e-mail records

Earlier this week, the Concord Monitor carried an article by the Associated Press reporting on a 50-state survey it had conducted on the retention of government e-mail. The survey found that "most of the states with e-mail laws allow officials to choose which ones to turn over in Freedom of Information requests and to decide on their own when e-mail records are deleted."

Public officials in New Hampshire have no such discretion. They must retain all their government e-mail and make it available to the public for the same period as governmental records in paper form. To the extent there might have been any question about the retention and public availability of government e-mail, it has been answered by House Bill 1408, which Gov. John Lynch signed into law earlier this month.

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House Bill 1408 is the Legislature's response to a request by the Supreme Court in the 2001 Hawkins case to examine and update the Right-to-Know Law "in the context of advancing computer technology." It represents the hard and commendable work of the Right-to-Know Oversight Commission, chaired by Republican Rep. John Thomas of Belmont.

The new law updates and clarifies the Right-to- Know Law in a number of respects, several dealing specifically with e-mail and other electronic records. The law requires that "governmental records" in electronic form, such as e-mail, "remain accessible for the same retention periods as their paper counterparts." Those periods are set by RSA Ch. 33-A, which governs the management and retention of municipal records.

"Governmental records," a defined term under the new law, include "any information created, accepted or obtained by, or on behalf of, any public body, or a quorum or majority thereof . . . in furtherance of its official function." What must be understood is that governmental records can include not only e-mail created or received by a public body's computer, but also e-mail created or received by a public official's "personal" or "home" computer.

In New Hampshire it is not uncommon for elected and appointed officials to use their home computers to transact official business. When they do, they must follow procedures to ensure that the governmental records they create or receive are accessible to their public bodies and publicly available for the requisite statutory period.

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