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President addresses question about legalities of e-mail

4/2/2001
April 2, 2001

At a meeting with Dr. Hoppe, members of the Faculty Senate asked a number of questions about the privacy of e-mail. Hoppe sought answers from the TBR and, because of broad interest, has made those answers available.

1. Are there some general rules about the legalities of e-mail at TBR institutions? Generally, e-mail communications are treated the same way as paper documents, both in terms of disclosure and retention, and the same considerations apply. The Public Records Act requires disclosureówith some exceptions. The Family Educational Rights and Privacy Act (FERPA) also prohibits disclosures of some communications.

2. Are e-mail communications from faculty to students protected from public disclosure? Generally, yes. Such communications would be considered an education record, as it would relate directly to a student. So if the request is for e-mails from Dr. X to student Y, the request would be denied unless consent were given by the student. In some cases, it might be possible to disclose the contents of the e-mail, provided the student's identity can be protected.

3. What if the request is for all e-mails from Dr. X made on a specific date? In that case, the contents of the communication could be disclosed, as long as all information that reveals the identify of a student or students is removed or rewritten.

4. Are e-mails sent to all students enrolled in a course protected? No. This information is not protected from disclosure, because the information would not directly relate to a particular student. However, if by virtue of the message being sent by e-mail a student's e-mail address is revealed, that portion of the communication is protected by FERPA. (Initially, the US Department of Education stated that student e-mail addresses could be designated as "directory information," but that position was retracted and is being reconsidered.) In some cases, disclosure of a communication would reveal which students were enrolled in a particular course. This is not considered "directory information" and is therefore not disclosed. Of course, the addresses could always be redacted, that is, eliminated or concealed somehow.

5. If someone asks for access to APSU's e-mails, are we required to grant that? E-mails between employees or from employees are generally subject to the Public Records Act, that is, open to disclosure. An exception to this would be if the information pertains to a student. That would put the e-mail in a category protected by FERPA. Some communication also may fall into the list of exceptions to the Public Records Act. These, too, would be protected. Should a broad request be made, that is, if someone ask for access to all APSU's e-mails, it would not be inappropriate to ask the person asking for the information to narrow the parameters of their request, perhaps by timeframe, subject matter or person. Then each requested e-mail must be examined to determine whether there is a FERPA concern or the information is an exception to the Public Records Act. If there is some connection between the request and ongoing litigation, the TBR should be contacted, as the more appropriate vehicle for disclosure may be through discovery.

6. Must we provide hard copies of e-mails that are requested under the Public Records Act? Copies of paper documents routinely are provided at a set cost, and the same considerations could be applied to requests for copies of e-mails. In some cases, it might be preferable to respond to a request for access with copies, rather than giving someone free rein at a computer. This limits access to other e-mails.

7. APSU routinely back emails up on our server. Is there a limit on the time they should be kept? There is no specific entry in TBR Guideline G-070 addressing the retention or destruction of e-mails. This generally is determined by their content. Content determines what type of record the e-mail is, and it's the type of record that determines how long it should be retained.

8. Are e-mails between students protected? How long should they be kept? Generally, an institution need not retain e-mails between students, as these are not business records of the institution but personal communications. There is one exceptionó e-mails about student organizations or student government.