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Posted: Tuesday, June 24th, 2008 4:45 AM HST

State records law does not require retention of e-mail

By Associated Press

HONOLULU (AP) _ Gov. Linda Lingle's office did not violate the state's open records law when it allowed the e-mails of former Chief of Staff Bob Awana to be purged, a review of state policies governing records retention has found. But a Democratic lawmaker said such e-mails should be kept, and a private expert says that easily could be done. The purging of Awana's e-mail raises concerns about Hawaii's e-mail management that have also arisen in other states. In Hawaii, government records that must be made available under open records law include agency meeting minutes and documents such as government contracts and purchasing information. The law requires government agencies to make their records available to ensure an honest and open government. However, the law does not require state agencies to maintain e-mails and other documents, even those that rise to the standard of a record. So, while people have a right to inspect public records, including e-mails, the law doesn't provide any guarantee that they will exist. The review was conducted by The Associated Press and confirmed by the state Office of Information Practices, which administers the state's open records law. The AP requested calendars and e-mails from Awana's government e-mail account in February to determine whether they could provide evidence of misconduct on state trips to the Philippines in 2005 or 2006. The governor's office said the e-mails had already been purged. Awana was blackmailed by e-mail for $35,000 over a relationship with a woman in the Philippines and resigned in June 2007 after the case came to light with the arrest of Rajdatta Patkar, who pleaded guilty to extortion last year. Public federal defender Pamela Byrne has alleged that Awana hired Patkar's girlfriend and another woman to serve as escorts for him and a businessman from Hawaii during an official state trip by Lingle to the Philippines. Lingle has said the blackmail incident was strictly personal and did not occur on official state trips. Awana has not responded to numerous messages seeking comment. Russell Pang, chief of media relations for the Lingle administration, said government e-mail records are purged every two months, and Awana did not save e-mails to his hard drive or print them out. In an earlier letter, he said Awana's computer was cleared for use by someone else after he left. "The Office of the Governor provided to The Associated Press all government records that were maintained by our office and determined to be public records," he wrote in the letter dated May 7. The AP's efforts to obtain Awana's e-mails from Patkar's criminal case also failed when U.S. District Judge Michael Seabright in January denied access, citing Awana's right to privacy as a victim. State Sen. Les Ihara, an advocate of government transparency, said state agencies should not be allowed to indiscriminately purge e-mails on a set timeline. "You may conduct negotiations or send official communication by e-mail, and that should become part of the records file," said Ihara, D-Kahala-Palolo. William Tolson, of Mimosa Systems Inc., a California-based company that sells e-mail archiving software, said corporations have archiving systems that retain hundreds of millions of e-mails for years. "There's no reason states can't have a system like that that captures all that stuff and retains it for some period of time," he said. "If companies do it, why can't the government?" A new panel created by North Carolina Gov. Mike Easley recommended last month that e-mail messages be stored for at least five years. Easley created the panel after his administration was accused of ordering state employees to delete their e-mail correspondence with the governor's office. Easley denied such a systematic destruction took place. In Missouri, lawsuits claim Gov. Matt Blunt's office deleted e-mails and ordered the destruction of backup e-mail tapes. Blunt's attorney has denied the governor directed the destruction of e-mails, and a spokeswoman says the governor's office has implemented an e-mail retention policy. In Hawaii, e-mails that rise to the level of a record are supposed to be kept for the same amount of time as the same type of record in another format, which can amount to years. But State Comptroller Russ Saito said the guidelines are not enforced by law. Saito, who oversees the state office that preserves records and helps state agencies manage them, added that state agencies decide what rises to the level of a record within their departments. "Compliance or interpretation of the (general records schedule) as it applies to records commonly found in state agencies such as e-mails and calendars are the responsibility of the agency," he said in an e-mail. Tolson said that policy raises concerns. "If somebody's doing something they shouldn't, they're obviously not going to keep it," he said. Hawaii state archivist Susan Shaner said while there may not be a law governing records retention, courts could hold an agency accountable for deleting records in violation of its general practices. "I don't think the majority of people ... who work for state government set out to try and do something illegal," she said. "Everybody's trying to do their job." She said there has been some discussion about retaining the e-mails of certain employees. But there is simply too much e-mail to save it all. Ihara disagreed, saying technology has made storage space for e-mails and other computer files inexpensive. "You can store virtually everything," he said. "The rationale that we need to purge in order to save space is moot." (Copyright 2008 Associated Press. All rights reserved)