Baby playing with phoneThere’s been a lot of news lately about “secret” messaging in government, including inside the White House and the EPA, and last week’s revelation that Vice President Pence conducted state business with a private email account while Governor of Indiana. So there’s lots of angst right now about under-the-radar communications.  When you think about it, though, it’s really old news tied to new technology.  The only difference is the growing sophistication of the tools in the last few decades.  Old School: clandestine meetings in parking garages.  New School: disappearing messages.

What is really at issue here is not the technology, but rather the implied intent of circumventing rules (if they exist), and whether or not the communications are records. By any measure, if the communication is a record as defined by public or private rules, it must be retained.  Herein lies the problem.

What is a Record?

According to the Federal Records Act (44 U.S.C. 3301):

Records include all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them.

In the private sector, a good definition is found in ISO 15489-1:

Information created, received, and maintained as evidence and information by an organization or person, in pursuance of legal obligations or in the transaction of business.

The common thread in these definitions is “the transaction of business.” This may sound simple enough when defining common written records such as tax returns, board minutes, and employment records, but what about electronic messaging?  Is a message between peers about work “transaction of business”?  Is a text from an employee to someone outside the company or agency a record if it does not advance the “transaction of business”? What the heck is “transaction of business” anyway?

No Rules + Inexperienced Innocents = Fiasco

Heady questions, to be sure, which will ultimately be tested and adjudicated on a case-by-case basis.

For governmental bodies, The National Archives and Records Administration just last fall published a white paper regarding text and instant messaging, saying that “records management practices around electronic messages are emerging” and that “they don’t have best practices to share at this time.”  Really?  This from the entity tasked with managing records of the federal government (including the White House)—so is it any wonder that current staffers may not have a clear understanding of their obligations and responsibilities when it comes to instant messaging?

And in the private sector, leaving aside a handful of explicit, black and white rules (such as those regulating broker dealers’ communications), there basically are no rules for retention of communications per se. This makes e-communications the mother of all “tools without rules.”

Internet-based email has been around for more than forty years, and text messaging came into widespread use about ten years ago, yet there are no widely accepted standards of use or retention for these technologies in either public or private sectors. Although NARA has published some guidance on management of email messages in the last three years, it essentially pushes the responsibility down to individual agencies to develop processes and identify tools to manage and capture content.

One may argue that government is dysfunctional and we should not look to it for guidance. Fair point.  But remember that federal and state governments promulgate most of the rules that dictate what records we must create and retain, if only we can recognize them when we see them.

Is There an Answer?

Perhaps. Let’s look at some considerations for deciding whether a communication is a record:

Subject matter – If we can define “transaction of business” we have a hope of defining relevant subject matter and thus whether a communication is a record.

The intent of channel selection – Understanding why a particular channel (such as sanctioned email, personal email, or text/SMS) is chosen.  Reasons might range from illegal purposes to avoidance of legal requirements (such as FOIA), to convenience, and to purely personal communications that discuss workplace issues (like how you hate your boss).

Capacity of sender – Whether the sender is acting as an agent of the agency or company, or as a private individual.

Our obligation to create a record – Whether there is an explicit obligation to create a record based on the content and context of the messaging.

Our obligation to retain a record – Whether there is an explicit obligation to retain the record.

Security requirements – Whether the communication must be secured from internal or external access due to confidentiality, privacy, or other concerns.

Each of these considerations will influence whether a communication is a record, and once we understand the answer to the record/non-record question, we can provide guidance about the most appropriate channel for communication.

15-Second Guide to Good E-Communications for Business – Easy as PIE

Here’s a crack at a simple set of rules for when to use which form of communication, when communicating by Phone or in-Person, by Instant message or text, or by Email:

Phone or in-Person Urgent, complex, sensitive, use when no retention obligation Ephemeral
Instant message/text Transient, trivial, uncomplicated, use when no retention obligation Less Ephemeral
Email Substantive, succinct, documented, use when there is retention obligation Enduring

Note that I do not suggest IM be used for sensitive business information (nor, of course, for any type of communication that may be covert or illegal!). Also, there may be special instances, such as closed workgroup IM applications, that require or support retention.  The bottom line is that you must define the boundaries for your company and your legal profile, and then publish and socialize your guidance.

Walking the Legal Line

The president of Confide (the protected text messaging application used by White House staffers) says the onus is on users to walk the legal line. “We expect people to use Confide in a way that complies with any regulation that may be relevant to their particular situation.”  This self-serving statement assumes that the innocents can see that line.  Most of us can’t.