Monday, September 19, 2011

Liar, Liar

In this interview from October, 2010, Governor Perry insists that his email destruction policy of 7 days is legal.

Let me blunt. Governor Perry is lying in this video. The email destruction policy is illegal.

The least important aspect of that destruction policy though is the obnoxiously short retention period; 7 days. Even the 30 day period proposed by the interviewer from the Texas Tribune would be illegal.

This is because both the procedure for preserving emails and the form of the "preserved" emails are illegal regardless of the retention period; be it 7 days, 30 days, 1 year, or 1 decade.

Lies contained in this short video:
  1. Govern Rick Perry (or Governor George Bush or the next Governor of Texas) gets to choose the retention period of emails.
  2. The legislature has not set a record retention policy for emails.
    • The legislature has spoken on the subject of emails by delegating the record retention details to the Texas State Library and Archive Commission via Section 441 of the Texas Statutes. The Texas Email Retention Policy created by the Texas State Library and Archive Commission under the authority of this legislative mandate is very clear:
      1. Emails are records subject to retention. [paragraph e]
      2. Emails are to be retained within the email system for the duration of the retention period [Paragraph b(1) of section 6.93]
      3. Emails are to be retained in electronic form if not retained within the original email system [paragraph a]
      4. Emails are to individually accessible and searchable as electronic records. [paragraph c]
  3. There is no set policy for the retention of emails
    • See above. The set policy as established Texas State Library and Archive Commission is:
      • Retain emails in electronic form within the original email system for the complete retention period of the record contained within the email.
      • The retention period of a record depends solely on the content of information contained in the record and not on the storage medium of the record (e.g. email, paper, fax, microfiche, etc.).
  4. The current, Print to Paper and File the Paper, policy is not chewing employee time.
    • The current policy for emails (after making the incredible assumption that this paper-based print and file system actually works) has the each member of the staff doing the following every night before leaving for the day:
      1. review every email that is seven days old
      2. Correctly identify the types of records represented by the text of the email message
      3. Correctly match the records types of the email to the record retention codes found in the Official Records Retention Schedule
      4. Correctly determine the email record type which has the longest retention period
      5. Print out the email
      6. Correctly mark the paper copy of the email with the date upon which the printed email may be destroyed. For example, write "Retain until December 31, 2012" on the paper copy of a September 2, 2011 email whose longest record retention code is CE+1; Calendar Year End + One Calendar Year
      7. File the paper copy of the email in such a way that the paper copy can be efficiently found by the staff in response to a Public Information Request made next summer on June 1, 2012 to which this email is responsive.
    • Governor Perry claims the current system above consumes less staff time than would be consumed if the emails were retained within the email server in their native format and in a form which can be searched electronically.
The email destruction policy of Governor Perry is manifestly illegal. But, as all politically connected criminals know:
  • breaking the law is only a legal peril if there is prosecutor willing to enforce the law and prosecute the guilty.
Governor Perry knows that no legal peril exists for him because no prosecutor exists who will investigate or prosecute him regarding this matter.

In 2008, Travis County District Attorney, Ronnie Earle, and the Texas Attorney General, Greg Abbott, confirmed the correctness of Perry's analysis as both declined to investigate the complaints filed by me regarding the 7 day email destruction policy. The documentation of these canvas-pounding dives taken by DA Earle and AG Abbot in 2008 can be found is this archive of the 2008 criminal complaints to their respective offices. Not only did they not investigate the complaints, they failed to even confirm that the absurd Print out and File policy was actually being carried out. This was a particular dereliction of duty as the reason proffered for declining to investigate the electronic aspects of the email destruction policy was the rationalization that no records were being lost because the paper-based, print and file system was unerringly preserving each and every important record contained in a deleted email.

In closing I would mention that I have touched on only two of the illegalities presented by Governor Perry back in 2008 with regards to his email destruction policy. I would urge you to read the complete complaints contained in the archive. Attorney Joe Larsen does a much better job than I can of enumerating and articulating all the statute violations.

P.S. as an aside:
If the Office of the Governor cannot fulfill its obligations under the Texas Public Information act because of space constraints, then they should avail themselves of the services offered by the Records Storage Unit of the Texas State Library and Archive Commission.

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