When it comes to record retention law, the important thing to realize is that it's the record that counts, not whether it is, for example, created with a pencil, a pen, a typewriter, a keyboard, or voice dictation device. The record is the thing.

This is true when it comes to email accounts. It's the record, the email, that matters; not whether it is stored in this or that account. Of course, email account addresses might be relevant when conducting searches. But it is not search parameters that primarily matter to records retention; it is the record. If it's an email, the agencies have to retain it; what email accounts it might be associated with, is a secondary issue.

Specifically, let's consider Georgia law. While private versus personal account is not specified, a record is a government record if it documents government business.

See for instance O.C.G.A. 50-18-99 (c): "All records created or received in the performance of a public duty or paid for by public funds by a governing body are deemed to be public property and shall constitute a record of public acts."

And now for federal law.

If an election record involves at least one federal contest, then that record--be it an email, a text-message, an instant messaging chat log, an Excel spreadsheet, or what have you--might someday end up in the hands of a receiving federal agency, such as the Department of Justice or the National Archives and Records Administration (NARA), so the federal definition of record applies in that regard.

44 U.S.C. 3301 defines records as "all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business" ... NARA glosses that as follows: "For practical purposes, Federal records are recorded information regardless of format, created or received in the process of conducting Government activities" and so on.

Particularly on the email accounts issue, January 2023 NARA guidance lays it out: "Electronic messages created or received in the course of agency business are likely federal records. This includes electronic messages sent or received on personal devices that meet the definition of a record. These messages must be forwarded or copied to an official account within 20 days."

The big picture should be clear: any attempts to dodge record retention obligations by waving hands about personal or private or other email accounts, ultimately won't pass legal muster. If the records involve federal contests, and they're within the retention period/schedule, they flat-out need to be stored and made available upon proper request.

This webpage created by Douglas Lucas on Thursday, 17 August 2023 as a footnote to my Venue article entitled lorem ipsum.