record retention in the electronic age and the new foia amendment

4/17/2015
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
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4/17/2015
What’s on Tap?

The Statutory Framework of Record Retention

Electronic Record Retention

E‐Mail Issues

Fiscal Responsibilities

E‐Discovery

Other Considerations
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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, subject to up to 2 years imprisonment or up to
$1,000 fine.
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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.
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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
FY + 7 years
Personnel Files
ACT + 6 years (+50 if EE cited for Unprofessional Misconduct)
Contracts
EXP + 6 years
Student File (CA‐60)
ACT + 60 years
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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.
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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.
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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.
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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.

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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.
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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.
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Conquering E‐Mail
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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).
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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.
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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
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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.
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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.
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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.
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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.
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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.
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Calculating Labor Costs under the New FOIA

Labor costs must be estimated in increments of 15 minutes or more; rounded‐
down 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).
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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.
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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.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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!!
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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.
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