Cuomo’s 90 Day Email Retention Policy is New, Not a Continuation

March 16, 2015

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The NY Times reports that Governor Cuomo’s 90-day automatic deletion of emails is a mere leftover from previous administrations. It’s not true. This email deletion policy was implemented in June 2013, and the State’s own memos prove it.

In June 2013, Karen Geduldig, General Counsel of the NYS Office of Information Technology Services wrote in a memorandum to all agency general counsels:

As of June 30, 2013, the State will be implementing a standard 90-day email management system for all State agencies. Email sent and received on or after June 30, 2013, will be retained for 90 days after the date on which it was sent or received unless otherwise deleted.

(Emphasis in original). That doesn’t sound like a continuation of a historical policy. In fact, the very next line explicitly spells it out:

Under this new system, email that must be retained longer than 90 days can and will be saved.

And:

General Counsels should take the following steps to prepare for implementation of the new email management system.

And finally:

This new standard may change how some users manage their email. ITS staff will provide your agency staff with technical guidance…

Geduldig certainly seems to be under the impression that the policy she’s announcing is new. Again, that memo is dated June 2013.

A month later, a July 2013 memo from Jean O. Quarrier, Deputy General Counsel of the NYS Department of Health to all employees of the NYS Department of Health, began with:

The Department of Health (“the Department”) is transitioning to a new 90-day email retention policy for all staff.

And continues:

Starting on July 30, 2013, email sent and received by persons working for the Department of Health and who are on Office 365 will be subject to a 90-day preservation period.

At no point does this memo, like the Geduldig memo, refer to this policy as a continuation of existing practice. It repeatedly describes the 90-day automatic deletion as “new.” In fact, the Quarrier memo notes:

You may have a significant amount of email in your DOH active mailbox that pre-dates July 30, 2013. You will have at least 30 days to review old email in your active mailbox.

Again, DOH employees may have had a significant amount of email in their DOH mailboxes as of that date, because this 90-day deletion policy was brand new in 2013. If this policy had actually existed since 2007, the Quarrier memo would not have acknowledged that users would have had “a significant amount of email” that pre-dated July 30, 2013. Or that “starting” soon, email would be subject to a 90-day preservation period.

There’s more: on February 20, 2015, New York State’s CIO Maggie Miller wrote a memorandum to all NYS commissioners and agency heads, where she specifically said:

As you are aware, on June 30, 2013, the State adopted a standard 90-day email management and preservation policy. This is a reminder that the standard 90-day email management and preservation policy continues to apply in Office365.

This policy simply did not begin in 2007.

A few days later, on February 23, 2015, William Cross, Director of Business Solutions for the NYS Office of Information Technology Services wrote a memo to all employees of the NYS Department of State in which he said:

As a reminder to all DOS users, a 90-day email retention policy was adopted by the State in June 2013. Since that time, users have been required to delete any email older than 90 days…

In 2013, GovTech wrote about the migration of New York State agencies to a single Office 365 email system. Their article interviewed several high-level employees of New York State, including then-CIO Brian Digman. GovTech wrote “John Norton, CIO of the health cluster with the New York State Office of Information Technology Services, said that those users were put on Office 365 more quickly by migrating only the most recent 180 days of email to start with…”

If New York State had truly begun deleting emails older than 90 days in 2007, there would not be 180 days’ worth of email to transition. Even more bizarrely, in the GovTech interview, Norton explains that the move to Office 365 is “starting” with 180 days of email, implying that users have even more email.

And in 2010, the New York State Archives Government Records Services department published a set of principles and best practices for email retention, titled Developing a Policy for Managing Email. The Archives noted in its section on retention and disposition:

Purging all emails after a defined time period is not an acceptable retention and disposition strategy.

It is simply unbelievable that two NYS CIOs, general counsels and CIOs of various state agencies, and the New York State Archives themselves are all unaware of a policy dating back to 2007.