In providing guidance for adhering to the PRA, the Library of Virginia notes that email
messages should be treated the same as paper correspondence. Again, email is only the
medium, or the envelope, by which the correspondence is sent; the retention schedule for
a particular email depends on its content, and the email should be preserved in the same
manner as its paper equivalent. Both incoming and outgoing email should be retained
when an email message is determined to be a public record, along with any attachments
sent via email.
Tips for using and managing email
All emails related to public business are subject to the provisions of FOIA and the PRA
and should be managed in the same manner as all other public records. Official emails
that need to be retained should be maintained with other public records that relate to the
same content.
There is a tendency with email to hit the delete button as soon as you are finished with a
particular message. In the process of managing emails, consideration must be given as to
whether a particular email must be retained for purposes of the PRA—a public official or
state or local government employee cannot automatically delete an email, just as such
official or employee can't automatically throw away paper correspondence and records.
FOIA governs access to records and the PRA dictates how long certain records must be
retained. If a government entity keeps an email (or any other record) for longer than its
retention schedule requires, that email is still subject to FOIA if requested. Conversely, if
a government entity properly disposes of a record pursuant to a retention schedule, and a
subsequent FOIA request is made for that record, FOIA does not require the government
entity to re-create the record.
Email is often used as a substitute for a telephone call and can be informal. However,
communicating via email creates a record that, depending on its content, must be retained
pursuant to the PRA and must be made available upon request to the public under FOIA.
Consider the consequences of these public record laws when determining whether to use
email instead of the telephone for an informal communication—it may not be in the best
interest of an agency for a public official or state or local government employee to
communicate an informal message via email that might be more appropriate via
telephone.
Public officials and employees should not commingle personal and official emails.
Personal emails do not need to be retained; emails relating to the transaction of public
business do. From an email management perspective, it is not advisable to mix personal
and official business in the same email.
Prepared by the Virginia Freedom of Information Council
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Updated November 2023