We’ve all recently read about several government officials using personal email accounts or email servers to conduct government business. But they are not alone by any means – a recent survey of 412 high-level government employees conducted by Atlantic Media’s Government Executive Meeting Group revealed that approximately one-third of the employees surveyed said they sometimes used their private email account for government business. Additionally, thirty-one percent said that the personal emails used for government business are not preserved for archiving, and forty-seven percent said that they do not know whether or not the records are properly preserved. While many still think of email as an informal, ephemeral means of communication, government emails are classified as public information under Texas Government Code, §552.002, and should be treated as seriously as any other record.
So what should you know about using your personal email account for government business? Well, the most important thing to remember is that keeping government communications separate is good, both for you, as the employee, and your government. Let’s see why.
Privacy and Security Issues
If you use a personal email account for government communications, you potentially open up that email account to government examination in instances of litigation discovery, audits, or Public Information Act requests. But this is not where the issue ends – by using a personal email account for government business, it means that your government’s official records are being stored on mail servers that are beyond your government’s and their IT department’s control. They don’t know where the data is being stored and they have no way to back up the data, archive it for retention, secure it from unauthorized access, or dispose of it once the retention period is expired. You might have agreed to follow Gmail’s terms and conditions, but they certainly did not agree to follow yours.
Faulty Disposition Practices
This leads to complications when it comes to records retention and destruction. Your government cannot dispose of what it does not know about and cannot protect records they do not have access to. While you may diligently dispose of the emails in your government email account during your yearly disposition, the likelihood that you are also scouring your personal account for government email is extremely low. And if you leave the government agency? You probably won’t remember that you have government records in your personal email, which means those records are effectively lost to the government.
These issues are complicated even further when an event like a Public Information Act request or e-discovery for litigation happens. Sending official government communications through a non-government channel means that the government either cannot produce those records (or use them in their own defense) or they have to shoulder the cost of having someone search through your personal emails for official government records. While your government may claim that they did not know about the records, a court may find that this is a failure to control government information and constitutes spoliation, which could result in colossal fines and sanctions.
How can we avoid these issues?
First, your government should have a clearly articulated email policy that includes language stating that all government business-related emails must use a government email account. If someone insists on violating the policy by using his or her personal email account, ask the person for their login and password so that you can access those records (they’ll quickly stop, just watch). Also, consider increasing the size limit for file attachments for your government’s email accounts – 10MB should be adequate; many times, an employee will use a personal email account because the size limit is much larger. You can also encourage employees within the organization to eliminate file attachments by linking to files stored on the shared drive or by implementing a file sharing technology like Microsoft SharePoint.
We know that it can be tempting to use your personal email on occasion – to work from home, to send a large attachment – but the risks you take in doing so open you and your government up to some potentially costly and embarrassing consequences. We’ve also heard that email is the most intimidating type of record to manage, but eliminating the complications of storing an email record in your personal account is a big step in the right direction.