Policy 165

Electronic Messaging Policy

Prepared by the following departments: Technology Services , Public Information, and Town Clerk 

Approved by Council: 11/19/2015

Supersedes:  3/10/2011

Effective Date: 11/19/2015

A.         Purpose and Scope

Town staff and officials often rely on electronic messaging to communicate with others. This policy reinforces that electronic messages pertaining to Town business are public records and gives instructions about electronic message management. 

This policy governs all types of electronic messaging (emails, text messages,tweets, voice mail messages, etc.). Without approval of the Department Director and the Chief Information Officer, email and telephone voice mail are the only electronic messaging tools authorized for employees and officials to conduct Town business. This is primarily due to the difficulties of managing and retaining these public records. All employees and officials who receive permission to use other electronic messaging tools (i.e., text messages,tweets, etc.) to conduct Town business must follow the rules in this Policy. 

This Policy is designed to provide guidance only, and in the event of conflict between this Policy and the law,the law prevails.  This Policy does not create any new or additional rights or obligations for any person or entity and is not designed to create a higher standard that is established by the Public Records Law.  

B.         Key Definitions

Board: All Town of Cary non-elected,appointed bodies (includes all boards, commissions, committees, task forces,etc.)

Discovery: The part of the litigation process when opposing parties exchange relevant documents,testimony and other information. Discovery helps each side understand the material facts and evidence in advance of the trial.

Electronic Messaging:The distribution of messages, documents, files, software, or images by electronic means (including email, text messages, tweets, voice mail messages, etc.).

Employee: All Town employees,including temporary and part-time employees. Volunteers and persons working fora temporary employment service (‘temps’) are also subject to this Policy, but the Town employee supervising the volunteer or ‘temp’ is also responsible for the public records of such volunteer or ‘temp’ under the Town’s Public Records Policy. 

File Custodian: The person responsible for maintaining the project or subject file to which a record(s) relates

Network: A system by which many computers are connected together. The Town of Cary’s network allows employees access to authorized areas on a central storage device. This includes access to printers and their department’s shared drives.

Official(s):All Town of Cary elected/appointed Town Council members and appointed board/commission,committee and task force members.

Official Record Custodian (also referred to as official custodian): Town of Cary Department Directors are designated as official records custodians and are responsible for all Town business related electronic messages created/received by all staff in the particular department (including the Town Clerk for Town Council business related electronic messages and Board secretaries/clerks for Board member business related electronic messages). Official custodians are responsible for ensuring departmental compliance with the Records Retention and Disposition Schedule and public records requests. 

Primary Records Custodian (also referred to as records custodian): Employees and officials who create and receive electronic messages are designated as primary records custodians and are responsible for managing the electronic messages according to the Records Retention and Disposition Schedule and disclosing them upon request. 

Protected Record: A record that is exempted from the definition of public records and a record for which there is statutory or other authority permitting or requiring that the information not be disclosed. 

Record Request: Includes any request for records, including subpoenas and discovery (as defined herein)

Records Retention and Disposition Schedule (hereinafter “Schedule”): The Town Council adopted document that identifies and describes the Town’s records and provides disposition instructions.

Redact: To remove confidential or protected information from an electronic message before releasing the message in response to a record request.

Retention: As used in this Policy, the minimum length of time we keep a record according to the Records Retention and Disposition Schedule.   

Subpoena: An order of the court for a witness to appear at a specified place and time to testify and/or to produce records.

Transitory: Records that are ephemeral, temporary, or transient in nature and have only short-term administrative value.

C.         Appropriate Use of Electronic Messages

1.         In General

Employees and officials should have no expectation of privacy with any electronic message created or received on Town technology. Electronic messages concerning Town business that employees and officials create, receive, or store on personally owned technology are public records and are subject to this Policy. Therefore, employees and officials should have no expectation of privacy with any Town business related electronic message created or received on personal technology. Refer to the Town’s Technology Appropriate Use Policy (Policy 113) for more information regarding appropriate use of Town technology.

2.         Electronic Messaging Signature Line Information

Employees and officials may not send anonymous electronic messages pertaining to Town business. Employees and officials must include a signature line on all Town business related electronic messages they send from Town or personally owned technology that includes the following information to appropriately identify their official capacity with the Town. 

·                    Employee’s Name

·                    Employee’s Title

·                    Department’s phone number

·                    Public records statement so that anyone who receives an email from an employee or official understands that the email is public and not private or confidential (i.e.,“In keeping with the NC Public Records Act, emails, and all attachments, maybe released to others upon request for inspection and copying without prior notification.”)

Employees and officials should not use personal, non-Town business related quotes or graphics in their electronic communications. For example, do not use quotes that support a personal belief or a non-profit activity.

D.         Responsibility for the Record

In general, each employee and official is the custodian of any electronic message they create, send and receive as the primary recipient(i.e., their name is in the “To” or “From” field). Each employee and official is responsible for managing these records according to the Schedule. If the custodian of the main file to which an electronic message pertains keeps that record in the main file, then other employees and officials may be able to delete the electronic message from their files. However, any employee or official who sends or receives an electronic message is responsible for assuring that the custodian of the main file has the complete electronic message record, which includes:  

• Name of Sender;
• Name of Recipient(s) including those bcc’d; 
• Subject Matter;
• Text of Body (actual message);
• Date and Time sent; 
• Complete attachment(s).  If the electronic message had an attachment, the attachment is part of the record and should be included in full (not just indicated by file name). 

The Town employee who sends an electronic message to other Town employees is responsible for managing the record according to the Schedule; the recipients of this electronic message only need to keep the record until its value to the mends. All Town employees and officials are responsible for managing electronic messages received from outside the Town of Cary, unless they designate the management of that record to a file custodian.

Generally,unless there is a pending claim or lawsuit, employees and officials who are cc’d on an electronic message, unless they are the custodian of that main file,probably are not required to keep a copy of the electronic message. However,the sender and bcc recipient of a bcc’d electronic message are custodians of that message and must ensure that one of them retains it or that the main file custodian maintains the complete record in the main file. Also, if you are the only Town employee or official copied on an electronic message, you are likely the custodian of that record and must manage it properly. (Refer to the Town’s Public Records Policy, Policy 152, item E.2. for more information on “litigation hold”.)

Use the chart below as a guide to determine who is responsible for keeping a particular electronic message record that is determined to be non-transitory. Refer to the Town’s Public Records Policy, Policy 152, Section E.2., Litigation Hold Requirements,which outlines that employees and officials must keep all records when a lawsuit has been or is anticipated to be filed on a particular matter (even those records we would not typically keep).

* Or designate a file custodian

** After the record’s administrative value to you ends

The Technology Services Department is responsible for computer system security and performance, but they are not responsible for managing employee’s and official’s records. Each employee and official is the primary record custodian for their electronic messages (according to the Town’s Public Records Policy, Policy 152), and each is responsible for managing Town business related electronic messages according to the Schedule, regardless of whether they are sent, received or stored on Town-owned or personal devices.

E.         Classifying Electronic Messages 

Electronic messages can generally be placed into three categories:

1.         Transitory, Town business related electronic messages:These electronic messages are public record, but as outlined in the Town’s Public Records Policy (Policy 152), employees and officials may delete them when their administrative value ends. Examples of transitory electronic messages include (but are not limited to):

·        Travel reservations

·        Confirms appointments

·        Personal messages

·        Transmits other documents without comment

·        Junk mail

2.         Non-transitory,Town business related electronic messages (including attachments): These electronic messages are public records and must be managed according to the Schedule,regardless of whether they are created, sent, received or stored on a Town or personally owned technology. Some examples of non-transitory, Town business related electronic messages include (but are not limited to) messages that:

·        Issue policy

·        State decisions

·        Outline procedures

·        Show action

·        Give guidance

If there is any question about whether an electronic message is transitory or non-transitory, the employee or official should treat the record as non-transitory and manage it according to the Schedule.

3.         Non-Town business related electronic messages: Electronic messages that are not Town business related are generally not public records. This includes (but is not limited to) personal electronic messages that are not Town business related and spam. Employees and officials are encouraged to delete personal electronic messages from Town devices. However, if an employee or official decides to keep personal electronic messages on Town devices, they should keep them separate from Town business related electronic messages. Developing effective email folders is a good way to segregate personal messages from Town business related messages. This helps ensure we do not inadvertently release personal electronic messages in response to a public records request. 

F.         Electronic Message Retention and Disposition Requirements

Electronic messages are subject to the same retention and disposition requirements as records in other formats, such as paper. Employees and officials who use electronic messages to conduct Town business are responsible for managing these records according to the Schedule. 

Electronic messages have one of three different values depending on their content: 

1.         Short-term (or transitory) electronic messages are temporary in nature. 

2.         Long-term (non-transitory) electronic messages have significant value to the Town but do not need to be maintained permanently. 

3.         Permanent electronic messages have lasting historical value. 

Refer to Section E of this Policy, Classifying Electronic Messages, for examples of transitory and non-transitory electronic messages. Employees and officials should evaluate the content of the electronic message to determine if it is short-term, long-term or permanent. Employees and officials may delete short-term (or transitory) electronic messages after the reference value ends unless there is a pending claim or lawsuit. (Refer to the Town’s Public Records Policy, Policy 152, item E.2. for more information on “litigation hold”.)Employees and officials must manage long-term and permanent electronic messages according to the Schedule. The Town Clerk can help employees and officials determine what electronic messages have permanent value and how to preserve them.

G.         Electronic Message Management 

Employees and officials can comply with electronic message retention and disposition requirements(refer to Section F of this Policy, electronic message disposition and retention requirements) by doing one of the following, although Option 1,electronically storing the electronic message, is recommended. 

1.         Electronically store the complete electronic message record according to the conventions of the email system,and retain it electronically pursuant to the schedule. Employees and officials should develop good email folder systems to ensure easy retrieval in response to records requests. Email records should not be left in the computer’s inbox, sent box, draft box or trash areas of the email system.  

2.         Print the complete electronic message record, and store the printed copy in the main file with other printed records.

H.         Use of Personal Electronic Message Accounts and Technology for Town Business

Employees and officials who maintain Town business related electronic messages on personal devices must search their personal devices and make these records available in response to a records request. These employees and officials must also ensure that the Town public records on their personal devices are maintained according to the Schedule and are backed up so they can be retrieved in the event of a system failure.

1.         Employees who have Town email accounts: Employees who have Town email accounts should ensure that any Town business related electronic messages received at or sent from personal devices are stored on the Town’s device according to the Schedule. The employee should then delete the Town business related electronic message from the personal device. This ensures that the employee does not have to search personal devices for Town records in response to a records request.

2.         Employees who do not have Town email accounts: Employees who do not have Town email accounts and who send or receive Town business related electronic messages on personal devices should electronically provide these messages to their supervisor and then delete them from their personal devices. This ensures that the employee does not have to search personal devices for Town records in response to a records request.

3.         Officials:Officials are encouraged to allow the official record custodian to manage all their Town business related electronic messages. After officials provide the Town business related electronic messages to the official custodian, they should delete the messages from their personal devices. This ensures that the official does not have to search personal devices for Town records in response to a records request. Instead, the official custodian would be responsible for searching records in response to a records request. 

I.          Electronic Message Records Requests 

Refer to the Town’s Public Records Policy (Policy 152) for general information pertaining to records requests and responding to these requests. In addition to records requests, all electronic messages, including transitory messages that have not yet been deleted, may be subject to subpoena and discovery requests in legal actions, investigations, compliance, and audits. Upon receiving notice about a claim or legal action, all Town employees and officials must electronically retain all electronic messages, including transitory messages, related to that claim or action. This includes electronic messages received, sent, or stored on Town and personal devices. Employees and officials should create email folder systems to file all electronic messages pertaining to a particular claim or action separate from other messages. The Town’s Legal Department will notify staff and officials when the claim or legal action is no longer applicable, at which time the employee and official may manage the electronic message records according to the Schedule.

J.          Protected Electronic Message Records

Refer to the Town’s  Public Records Policy, Policy 152, and the Security of Information, Policy 158, for information about“protected records”, which includes electronic messages. Employees and officials are advised to avoid using electronic messages to send or receive protected information and to instead seek alternate methods of record sharing. Electronic messages are not secure and are easily compromised. They are subject to being intercepted and read an dare easily forwarded to others, who are not the intended recipients. If an employee or official determines that a protected electronic message is necessary, then the electronic message should be appropriately labeled as ‘confidential’ in the subject line. Employees must obtain approval from their supervisor before transmitting protected information in an electronic message.

If an electronic message contains both protected and public information, then the employee and official must redact the protected information from the record prior to releasing it in response to a record request. Employees and officials should set up email folder systems to ensure all protected electronic messages are filed separately from public record electronic messages. This helps ensure we do not inadvertently release protected electronic messages in response to a records request. 

K.         Departing Employee and Official Electronic Messages

1.         Departing employees with Town email accounts: The supervisor shall require the departing employee to ensure the Town email account is managed according to the Schedule and that electronic messages are filed properly in appropriately named folders to ensure easy access of records. The supervisor shall require the departing employee to forward any Town related public record electronic messages stored on any personal equipment to the employee’s Town equipment. After the employee leaves Town employment, Technology Services will copy all the departed employee electronic messages and provide them to the Department Director for appropriate retention according to the Schedule. The Department Director, as the official records custodian, must ensure that these departed employee electronic messages are managed according to the Schedule and are provided appropriately in response to records requests. Any personal, non-Town business related electronic messages that remain on the Town’s equipment after an employee leaves the Town remain the property of the Town.

2.         Departing employees who do not have Town email accounts: The supervisor shall require the departing employee to electronically provide all Town business related electronic messages on personal equipment to the supervisor prior to the employee’s last day of employment. The Department Director, as the official records custodian, must ensure that these departed employee electronic messages are managed according to the Records Retention Disposition Schedule and are provided appropriately in response to records requests.

3.         Departing officials:

a.         Town Council Members:The Technology Services department will work with all elected officials leaving office to ensure all Town public electronic message records are copied and provided to the Town Clerk. The Town Clerk will facilitate this process.

b.         Board Members: All departing Board members will provide all Town public electronic message records to the Town employee who serves as the Official Records Custodian for that particular Board. The Official Records Custodian will facilitate this process.

L.         Training

The Town offers various public record electronic messages training opportunities throughout the year and on an as-needed basis. Employees and officials should contact the Town Clerk or the Technology Services Department with specific training suggestions. The NC Department of Cultural Resources also provides training (more information is available on their Website.  

M.        Related Documents

·        North Carolina General Statutes (Chapter 132 and other chapters)

·        Town of Cary Public Records Policy (Policy 152) 

·        Town of Cary Technology Appropriate Use Policy (Policy 113) 

·        Town of Cary Security of Information (Policy 158) 

·        Municipal Records Retention and Disposition Schedule

·        Sunshine section on C-Net (for Town employees) 

By signing this page I acknowledge I have been provided a complete copy of the Town’s Electronic Messaging Policy (Policy 165), which was adopted by the Cary Town Council on March 20, 2011.Also, by signing this page, I acknowledge I have read, understand and agree to abide by the requirements of this Policy.

Signature:        _________________________________________________________

Printed Name:  _________________________________________________________
(Please print legibly)

Date Signed     _________________________________________________________