RECORD RETENTION IN THE ELECTRONIC AGE AND THE NEW FOIA AMENDMENT

RECORD RETENTION IN THE ELECTRONIC AGE AND THE NEW FOIA AMENDMENT MSBO Annual Conference April 29, 2015 2015 About the Presenters Marshall W. Grate, Esq. Clark Hill PLC 200 Ottawa Avenue NW, Suite 500 Grand Rapids, Michigan 49503 616.608.1103 mgrate@clarkhill.com 2 1

What s on Tap? The Statutory Framework of Record Retention Electronic Record Retention E Mail Issues Fiscal Responsibilities E Discovery Other Considerations 3 Statutory Framework for Record Retention Michigan Freedom of Information Act MCL 15.231 et seq. ( FOIA ) FOIA requires school districts to maintain those records which document the official business of the school district. Any person may request in writing to inspect, copy or receive copies of public records. There are multiple exemptions from disclosure. Example: Michigan Fed. of Teachers v. Univ. of Michigan case. Historical Commission Act MCL 399.1 et seq. ( HCA ) Requires Retention and Disposal Schedules for various governmental entities, including school districts. See MCL 399.5. Any record that is kept as part of carrying out the official duties imposed by law shall not be disposed of, mutilated or destroyed unless provided for by law. Michigan Penal Code MCL 750.491 All official records shall only be disposed of in accordance with Section 5 of the HCA. Illegal disposal of records is Misdemeanor, subjecttoupto2yearsimprisonmentorupto $1,000 fine. 4 2

Statutory Framework for Record Retention General Rule: A record shall not be disposed of unless such disposal is provided for in an approved retention and disposal schedule. Records vs. Non Records A public record is document or writing, prepared in any medium, which documents the official business of the school district. A public record may exist in a wide variety of formats, including both hard copy and electronic mediums. A non record is a document or writing, prepared in any medium, which does not document the official business of the school district, such as: duplicate copies; memorandum, worksheets and internal notes that do not represent significant basic steps in preparing a public record; transmittal correspondence (including e mails) that do not document significant activities; etc. 5 Retention Schedules Retention and Disposal Schedules for School Districts General Schedules vs. Agency Specific Schedules General Schedule #1 Covers non records of school districts. http://www.michigan.gov/documents/hal_mhc_rms_gs1_local_110758_7.pdf General Schedule #2 Covers records of school districts (Approved Dec. 7, 2010). http://www.michigan.gov/documents/hal_mhc_rms_local_gs2_171482_7.pdf Type of Record Retention Period RFPs/Bids for Services/Construction ACT + 7 years Act 18 Funds Final Report Personnel Files Contracts Student File (CA 60) FY + 7 years ACT + 6 years (+50 if EE cited for Unprofessional Misconduct) EXP + 6 years ACT + 60 years 6 3

Retention Schedules Issues to Consider Most Timeframes in Retention Schedule Based on Corresponding Laws. Contracts Statute of Limitations on Contracts is 6 years. I 9 Forms 3 years after hire or 1 year after termination (Immigration Reform and Control Act). Always Cross Check Funding Source Requirements. Grants may have different retention requirements. Federal Funds may require specific retention requirements. If record not listed in schedule, should request additional guidance. The Pack Rat Dilemma School districts are not required to maintain all documents produced; only must maintain records. Retaining records beyond required period may not always be prudent. Retaining non records can be costly and raise additional issues for the school district. 7 Electronic Record Retention Records Reproduction Act MCL 24.401 et seq. May convert hard copy records and store and reproduce those records in any of the enumerated electronic mediums or any approved electronic medium. Electronic storage and reproduction must ensure: (i) integrity; (ii) authenticity; (iii) accessibility; and (iii) usability. A record reproduced under this act shall have the same force and effect as a true paper copy of a record. All copies produced under this act, when certified as true by the officer in whose office the original was filed or recorded, shall have the same force and effect as an original for all legal purposes and is admissible in court, administrative proceedings, and elsewhere as evidence in the same manner as an original. Electronic Documents & Signatures E Sign Act (Federal Law) and Uniform Electronic Transaction Act (Michigan Law). So long as electronically stored record provides a readable and accurate impression of the original document, the electronic record still will be regarded as a valid legal document admissible in legal proceedings. Electronic signatures are valid. 8 4

Electronic Record Retention Federal Rules of Evidence ( FRE ) and Michigan Rules of Evidence ( MRE ) The data or information stored in a computer or similar device or any printout or other output readable by sight, shown to reflect the data accurately, is an original. FRE/MRE 1001(3). A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical electronic re recording or by chemical reproduction, or by other equivalent techniques, which accurately reproduces the original. FRE/MRE 1001(4). A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in circumstances it would be unfair to admit the duplicate in lieu of the original. FRE/MRE 1003. Metadata Issues It is data about data, being descriptive information about a particular data set, object, or resource, including how it is formatted, and when and by whom it was collected. 9 Electronic Retention Issues and Systems Many forms of records and all records (and necessary corresponding data) must be retained. Identify all categories of records, including sources of information (such as Metadata). Use of hard storage and/or electronic storage (Records Reproduction Act MCL 24.401). Centralized Storage On Site vs. Off Site issues. Implement system for easy retrieval. Ensure Back up and Recovery systems and protocols are in place. If use third party host, ensure ancillary laws such as FERPA are also followed. Beware of Metadata. Metadata is often necessary for the functionality of an electronic record, or to document authenticity of electronic record. 10 5

Conquering E Mail The Complexities of E Mail Many issues arise with E Mail: Most E Mails often document what would otherwise be a verbal conversation. The E Mail AND attachments may be records subject to retention, with different retention requirements for each component. E Mails falls into various categories: Records Must be retained pursuant to Schedule Transitory Records Temporary Value. Non records Dispose once served intended purpose. Personal Records Do not retain (require prompt purge). Beware of Instant Messaging. Can be a record if documents official business or decision making. State of Michigan uses Microsoft Lync and tracks/stores conversations in Outlook. 11 Conquering E Mail Who Should Retain E Mail? Generally, the Sender of an E Mail should retain the E Mail, but the recipient must also determine if they must retain the E Mail because they take action in response thereto that documents an official action or function. Employee Responsibilities Retain only final communication. Drafts are Non records. Multiple/duplicate copies are not necessary and costly. Evaluate all material to ensure it is appropriately identified (e.g., E Mail attachments). Retain in proper filing system. Organize E Mails so they can be retrieved easily. Regularly dispose of E Mails that do not need to be retained (90 day rolling purge). Retain calendars/tables pursuant to Schedule. 12 6

Conquering E Mail 13 E Mail Storage Issues Personnel/Employee Responsibilities are key to implementation of policies and retention system. Need to choose storage option that is appropriate for school district needs. Ensure Policies, Procedures and Retention Schedule easily accessible to staff. Education of Staff!! Storage Options: Live System can be costly. Archival System with periodic archival folders/subfolders. Save to separate server. Paper print out and retain. Utilize Records Management Software (RMA). 14 7

Fiscal Responsibilities Legal Steps to Comply Implement Policies and Procedures to Address Records Management Policies Should be flexible to allow for change. Require compliance with laws. Identify key directives of the school district. Authorize Administrative Procedures. Procedures Supplement Policy. Use to implement Policy directives. Address specific protocol of school district and personnel. 15 Fiscal Responsibilities Legal Steps to Comply Record Retention Policy/Procedures Identify record retention and management system to be used. Address FOIA coordinator and FOIA response issues. Designate the school district s Office of Record. Address E Mail Issues (if not in separate E Mail Retention Policy/Procedures) Detail school district staff/personnel responsibilities. Acceptable Use Policy/Procedures Used for all Technology Resources, including E mail. Define Acceptable and Prohibitive Uses of school district Technology. Set forth that use of Technology Resources is privilege. Discipline issues for misuse. No right to privacy. Require technology use agreements. 16 8

Fiscal Responsibilities Legal Steps to Comply E Mail Retention Policy/Procedures May be a part of Record Retention Policy (but with detail). Address storage issues. Address personnel and school district responsibilities. Address purge protocol. Address FOIA issues. Educate Personnel on Policies Educate Personnel so they are familiar with responsibilities and protocol. Use In Services. Use on line course offered by Office of Records Management. Failure to follow policies or law could result in significant liability to school district. FOIA Issues Litigation Issues Target case 17 Fiscal Responsibilities How do we effectively put policies into practice? Annually review internal policies, procedures and processes. Develop Internal Manual for Staff. Ensure Policies, Procedures and Staff Manual(s) easily accessible to staff. Education of Staff!! Hold staff in service on record retention issues. Ensure staff understand their roles and obligations. Part of new staff orientation and handouts. Annually review anticipated needs of school district. Plan ahead for possible change. Periodically assess new opportunities and retention practices. 18 9

FOIA Amendment PA 563 (2014) The Michigan Freedom of Information Act ( FOIA ) was enacted in 1976 as part of a nationwide effort to promote government openness and accountability by providing access to public documents and communications. Generally, all public records of a public body that are properly requested must be disclosed. No obligation to create a public record that does not exist. Certain public records may be withheld from disclosure as exempt. Exemptions are narrowly construed. 19 Background/Key Definitions Public body generally means all state and local public offices, boards, councils, committees, authorities, officers, employees and related public entities. Public record means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Writing means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds or symbols. Includes emails, text messages and cell phone records. 20 10

Public Act 563 of 2014 Public Act 563 was signed into law by Governor Snyder on January 11, 2015, extensively amending the FOIA. Generally, the amendments relate to the calculating of fees, the processing of requests, increased appeal rights, and the imposition of increased penalties under the FOIA. The amendments apply to FOIA requests beginning July 1, 2015. 21 Changes to Calculating Fees Currently, a public body may impose a fee for the labor (hourly wage plus benefits) and resources used in processing a FOIA request, including the costs associated with searching for documents and the examination and review of requested public records. No appeal process is specified for a calculated fee under the FOIA. Under Public Act 563, beginning July 1, 2015: Labor costs must continue to be calculated at the hourly rate of the lowest paid employee capable of retrieving and reviewing the requested public records, regardless if that person is available or is the one that actually performs the labor. Right to appeal fee calculation to the Circuit Court. 22 11

Calculating Labor Costs under the New FOIA Labor costs must be estimated in increments of 15 minutes or more; roundeddown for partial increments. A public body may only include up to 50% of the fringe benefits of the lowest paid employee into the related labor cost. Overtime costs cannot be included without the consent of the FOIA requestor. Labor costs associated with contract services (attorneys, etc.) to separate exempt from non exempt information may not exceed six times the state s hourly minimum wage ($51.00). 23 Calculating Copying and Postage Costs under the New FOIA Regardless of any preexisting policy or procedure, a public body s per page copy fee cannot exceed $0.10 per page (8 ½ X 11 or 8 ½ x 14). The most economical means for making paper copies must be used (i.e., double siding, etc.). The provisions relating to the discounting of fees for indigent FOIA requestors is expanded through the inclusion of certain nonprofit organizations. If public records are mailed, the public body must charge for the least expensive form of postal delivery unless specifically asked by requestor. 24 12

Requiring a Good Faith Deposit under the New FOIA Under Public Act 563, beginning July 1, 2015: A public body is precluded from requiring a good faith deposit or imposing a fee without established procedures and guidelines. A public body may continue to require a good faith deposit of up to 50% of the estimated fee, but any request for a deposit must include a detailed itemization consistent with its procedures and guidelines. Still cannot require a good faith deposit unless estimated costs to respond exceed $50. A public body may, under certain circumstances, require a 100% deposit from a requestor who has not previously paid for a fulfilled FOIA request. A FOIA requestor may appeal a proposed FOIA processing fee to Circuit Court. 25 Procedures and Guidelines under the New FOIA Under Public Act 563, beginning July 1, 2015: A public body must establish and adopt procedures and guidelines, and create a written summary explaining how to submit written FOIA requests and how to understand written responses, deposit requirements, fee calculations and appeal procedures. Procedures and guidelines must include a standard form to detail the itemization of any fee the public body estimates or charges under the FOIA (i.e., labor costs, copying costs, postage costs, costs of any non paper physical media). 26 13

Publication of Procedures and Guidelines A public body must post the required procedures, guidelines, and written summary on its website and provide free copies, upon request. A public body must include a free copy or a website link to the procedures, guidelines, and written summary in all FOIA responses. 27 Changes to Processing Currently, the FOIA does not mandate how public records must be provided nor does it specify that proposed fees must be reduced if a public body fails to meet all requirements. Under Public Act 563, beginning July 1, 2015: A FOIA requestor may stipulate how the records are to be provided non paper, electronically mailed or otherwise electronically provided in lieu of paper copies. If a FOIA request is delivered to a spam or junk mail folder, the request is not received until one day after it is discovered by the public body. A public body may inform the requestor that requested information is available on its website, in lieu of providing public records, so long as the records were available on the website at time of the request. Must provide specific webpage address. Can charge for labor costs and 100% of fringe benefits if requestor still insists upon receiving public records in paper or other specified format. If a public body fails to respond to a written request in the time specified under the FOIA (i.e., up to 15 business days with an extension), the calculated fee must be reduced by 5% for each day that exceeds the time permitted. 28 14

Changes to Penalties Imposed Currently, a requestor may submit a written appeal of a FOIA denial to the head of the public body. The requestor may commence a civil action within 180 days of the public body s final denial determination to compel disclosure if he/she believes public records were wrongfully withheld. If the court determines that a public body has arbitrarily and capriciously violated the FOIA, punitive damages in the amount of $500 may be assessed. Under Public Act 563, beginning July 1, 2015: Mandates a new civil fine of $1,000 to the public body if a court determines a public body arbitrarily and capriciously violated the FOIA by refusing or delaying access to a public record. Increases punitive damages to $1,000. As under prior FOIA, a Plaintiff may also receive attorney s fees, and costs of litigation. 29 Changes to Penalties Imposed (cont d) A requestor may now commence a civil action in dispute of a fee proposed by a public body, however, the requestor must first pursue the public body s internal appeal process, if one is adopted. If the requestor prevails in a civil action by receiving a reduction of 50% or more of the total fee, the court may award attorney s fees and costs. A court shall also award the requestor punitive damages of $500, and order the public body to pay a fine of $500 in addition to any actual, compensatory or punitive damages, if it determines that the public body arbitrarily and capriciously violated the FOIA by charging an excessive fee. If a court determines that a public body has willfully and intentionally violated the FOIA, or otherwise acted in bad faith, an additional fine between $2,500 and $7,500 for each occurrence may be imposed. In determining the fine, the court will consider the budget of the public body and whether the public body has previously been assessed penalties for violating the FOIA. 30 15

Important Tasks BEFORE July 1, 2015 Revise existing and/or create the necessary procedures and guidelines, written summary, and standard form for itemizing fees and costs. Highly recommended that your district adopt process for the appeal of claimed excessive fees. Train responsible staff on the new procedures, guidelines, and standard itemized form and importance of alerting designated FOIA coordinator of FOIA requests so the district can properly respond to FOIA requests under the new law. Anticipate and budget for increased FOIA administration costs due to anticipated increase of FOIA requests and new limitations on recovering associated response costs. 31 More on E mail and Text Messaging School Districts have model retention polices. State laws require school districts to pay close attention to record retention issues. Polices often play an important role. Must recognize the potential problems with e mail: Avoid e mail battles over policy issues. Treat e mail as an official document. Limit recipients of e mail (cc. and bcc.) to only those who need to know. Always be professional. Be factual. Save humorous remarks for other venue often taken way out of context. Make employees aware of policies, procedures and practices. Be familiar with information security issues (SSNs, PII, student information). E mail is subject to FOIA. 32 16

Record Retention and Litigation E Discovery Electronic Data is automatically part of discovery in litigation process. Federal Courts have adopted discovery rules to address electronically stored information. Electronic information includes: electronic versions of documents; spreadsheets; presentations or e mails and attachments; instant messaging; Voice Over IP records and voicemail; databases of compiled data; blackberry and cellphone records; ipods and ipads and other electronic media that may have relevant information. Much Broader than FOIA. Test is whether it is likely to lead to relevant information. Information (records) may not be subject to FOIA, but subject to discovery. 33 Record Retention and Litigation Litigation Hold Must suspend routine document retention and destruction when: A party has notice of litigation; or A party should have known that electronic information may be relevant to future litigation. If fail to comply, spoliation of evidence claim may result in sanctions or in extreme cases, default. Proactive Recommendations Create inventory. Review past litigation history. What documents were produced during prior discovery? What would be relevant to school district s defense. Where are they located and how can they be retrieved? Cost of retrieval. 34 17

Summary Maintain up to date policies and practices. Understand various types and levels of documents and records. What level of duplication will be used? If multiple sources of email, which source in preserved and produced. Understand accessibility of data and records. What back up and recovery systems are in place? Do you have a disaster recovery plan in place? Educate Staff!! 35 THANK YOU! Any Questions? **** This document is not intended to give legal advice and does not establish any attorney client relationship. It is comprised of general information. A School District facing specific issues should consult with its attorney. 36 18