Are emails part of personnel file? use e-discovery laws
As a result, the Federal Rules of Civil Procedure (FRCP) were amended in December 2006 to address e-discovery.
The FRCP amendments do not require agencies to keep all of their e-mails (or other electronic records) permanently.
dhs data: information is retained per the requirements of General Records Schedule 14, Informational Services Records (see Question 3.2).
3.2 Has the retention schedule been approved by the component records officer and the National Archives and Records Administration (NARA)?
Records are retained and disposed of in accordance with the National Archives and Records Administration’s General Records Schedule 14. Files may be retained for up to six years. For requests that result in litigation, the files related to that litigation will be retained for three years after final court adjudication.
http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_dhs_lists_20111215.pdf
Further, recent case law demonstrates that courts expect organizations to produce ESI in the same electronic format in which the organization normally created or maintained it for business purposes. Therefore, in the event of litigation or reasonably anticipated litigation, existing records in electronic form must be maintained in their current electronic format; printing them out or converting them to another format at that point might not only be unnecessary, but also might be unacceptable to the court. If an agency has a print and file policy for e-mail, deletion of e-mails once printed must be suspended until all legal discovery issues are closed.6
june 29, 2009 california electronic discovery act – california code of civil procedures – requesting and obtaining stored data for civil cases
uniform rules related to discovery of electronically stored information (uniform rules)
see: uniform e-discovery rules CCP § 2016.020; FRCP 34(a)(1).
If complainant used emails to secure direct evidence, and complainant was denied ability to make hard copies of work related matters, is that also an obstruction or destruction of evidence in bad faith?
If the email account was not stored, or upon termination the account was terminated, is the data still available?
What is the law on government agency emails, and how long do they need to store records?
Direct evidence would clearly show that complainant notified management of disability and subsequent requests for reasonable accommodation. The request was made via email, because handwritten requests were destroyed, although verbal requests for reasonable accommodation were confirmed by management testimony.
If an agency has a print and file policy for e-mail, deletion of e-mails once printed must be suspended until all legal discovery issues are closed.6
6 See, for example, Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. CIV. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010) and subsequent amended opinions; Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003); and Vagenos v. LDG Fin. Servs., LLC, No. 09-cv-2672, 2009 WL 5219021 (E.D.N.Y. Dec. 31, 2009).
The rules for destruction of evidence – and suspended destruction of evidence when litigation or complaints arise – apply here
Have a formal procedure for placing a litigation hold on records in all formats that might be relevant to anticipated, pending, or ongoing litigation.
http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/EDiscovery_w_Notes.pdf
Rule 26(b)(2)(C)
When a party is under a duty to preserve
information because of pending or reasonably
anticipated litigation, intervention in the routine
operation of an information system is one aspect of
what is often called a “litigation hold.”
Discovery will be needed on the following
subjects: (brief description of subjects on which
discovery will be needed)
Disclosure or discovery of electronically stored
information should be handled as follows: (brief
description of parties’ proposals)
If you have any questions regarding the Handbook please contact your Component Privacy Officer or privacy@dhs.gov.
Mary Ellen Callahan
Chief Privacy Officer
Chief Freedom of Information Act Officer
The Privacy Office
United States Department of Homeland Security
If you have any questions or concerns about privacy at DHS, you are encouraged to contact your Component Privacy Officer, Component Privacy Point of Contact (PPOC), or the DHS Privacy Office2 at (703) 235-0780 or privacy@dhs.gov. A list of Component Privacy Officers and PPOCs is available at the Chief Privacy Officer’s page on the DHS intranet.
dhs data: information is retained per the requirements of General Records Schedule 14, Informational Services Records (see Question 3.2).
3.2 Has the retention schedule been approved by the component records officer and the National Archives and Records Administration (NARA)?
Records are retained and disposed of in accordance with the National Archives and Records Administration’s General Records Schedule 14. Files may be retained for up to six years. For requests that result in litigation, the files related to that litigation will be retained for three years after final court adjudication.
http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_dhs_lists_20111215.pdf
Access requests can also be directed to FOIA / PA D-3, The Privacy Office U.S. Department of Homeland Security, 245 Murray Drive SW, Building 410, STOP-0550, Washington, DC 20528-0550.
Additionally, the System of Records Notice DHS/All 002 (69 FR 70460, December 6, 2004) details access provisions along with the names of officials designated to field such requests within the Department.
DHS Management Directive 4300A outlines information technology procedures for granting access to Department computers, which is where the majority of contact information is stored. Access to contact information is strictly limited by access controls to those who require it for completion of their official duties.
I. For Headquarters components of the Department of Homeland Security, the System Manager is the Director of Departmental Disclosure, U.S. Department of Homeland Security, Washington, DC 20528.
II. For operational components that comprise the U.S. Department of Homeland Security, the System Managers are as follows:
United States Coast Guard, FOIA Officer/PA System Manager, Commandant, CG-611, U.S. Coast Guard, 2100 2nd Street, SW., Washington, DC 20593-0001
United States Secret Service, FOIA Officer/PA System Manager Suite 3000, 950 H Street, NW., Washington, DC 20223
United States Citizenship and Immigration Services, ATTN: Records Services Branch (FOIA/PA), 111 Massachusetts Avenue, NW, 2nd Floor, Washington, DC 20529
National Protection and Programs Directorate, FOIA Office, 3801 Nebraska Ave., NW, Nebraska Avenue Complex, Washington DC 20528
United States Customs and Border Protection, FOIA Officer/PA System Manager, Disclosure Law Branch, Office of Regulations & Rulings, Ronald Reagan Building, 1300 Pennsylvania Avenue, NW (Mint Annex)., Washington, DC 20229
United States Immigration and Customs Enforcement, FOIA Officer/PA System Manager, Office of Investigation, Chester Arthur Building (CAB), 425 I Street, NW., Room 4038, Washington, DC 20538
Transportation Security Administration, FOIA Officer/PA System Manager, Office of Security, West Building, 4th Floor, Room 432-N, TSA-20, 601 South 12th Street, Arlington, VA 22202-4220
Federal Protective Service, FOIA Officer/PA System Manager, 1800 F Street, NW., Suite 2341, Washington, DC 20405
Federal Law Enforcement Training Center, Disclosure Officer, 1131 Chapel Crossing Road, Building 94, Glynco, GA 31524
Under Secretary for Science & Technology, FOIA Officer/PA System Manager, Washington, DC 20528
Office of Intelligence and Analysis, 3801 Nebraska Ave., NW, Nebraska Avenue Complex, Washington DC 20528
Under Secretary for Management, FOIA Officer/PA System Manager, 7th and D Streets, SW., Room 4082, Washington, DC 20472
Office of Inspector General, Records Management Officer, Washington, DC 20528
DHS Recovery Act Data Warehouse
The DHS Recovery Act Data Warehouse will be a repository used to fulfill a number of reporting requirements on all DHS associated Recover Act Grants awarded. (July 27, 2010)
Transportation Security Administration IdeaFactory (IdeaFactory)
IdeaFactory (IdeaFactory) is an application that is part of the MOP_Apps system. IdeaFactory is TSA’s web site for employee collaboration on TSA’s most important issues. (May 18, 2011)
Transportation Security Administration Peer Review (PEERREV)
The Peer Review Program (PRP), under the Office of Human Capital (OHC) of TSA, provides covered employees – Transportation Security Officers (including master and expert TSOs), Leads, and Supervisors with an alternative option to TSA’s existing grievance and appeal processes. (May 18, 2011)
Proper uses of DHS e-mail systems include exchange of information that supports the DHS mission, goals, and objectives, job-related professional development for DHS management and staff, and communications and exchange of information intended to maintain job currency or gain additional knowledge that is directly or indirectly related to job functions.
6. Improper uses of DHS e-mail systems include:
Engaging in any activity that would discredit DHS, including seeking, transmitting, collecting, or storing defamatory, discriminatory, obscene, harassing, or intimidating messages or material.
10. Proper business etiquette should be maintained when communicating via e-mail. When writing e-mail, DHS users should be as clear and concise as possible and avoid remarks, expressions, or attempts at humor that could be misconstrued or misinterpreted. E-mail communications should resemble typical professional/respectful business communications.
B. Procedures:
1. E-mail messages determined to be federal records shall be governed by records management federal regulations and DHS MD-0550, “Records Management” directive pertaining to creation, maintenance, adequacy of documentation, recordkeeping requirements, records management responsibilities, records retention, and records disposition.
a. E-mail messages are subject to public disclosure in accordance with the Freedom of Information Act (FOIA) and, unless privileged, are subject to discovery in judicial or administrative proceedings.
(4) E-mail, including all messages sent or received on DHS e-mail systems, is subject to monitoring (i.e., communications in process of transmission, records in storage pending receipt, and records in archival storage by or on behalf of the user), by appropriate personnel for business purposes to:
(c) Conduct authorized law enforcement surveillance or investigations, including tracking unauthorized access to a DHS e-mail system.
(e) Conduct business during a prolonged absence of an employee, when information in the employee’s e-mail is required.
(g) Ensure compliance with policy set forth in paragraph VI.A.
Department of Homeland Security
Management Directives System
MD Number: 4500.1
Issue Date: 03/01/2003
DHS E-MAIL USAGE
http://www.dhs.gov/xlibrary/assets/foia/mgmt_directive_45001_dhs_email_usage.pdf
