The Deleted Message Is a Record

A federal record is defined by what it does, not by what it is written on.

A memo on letterhead, an email and a text message sent between two officials about a decision are, for the purposes of the law, the same kind of thing. Each documents the government's business, and each belongs to the public rather than to the person who wrote it.

That principle is old. The difficulty is that the tools officials use to communicate changed much faster than the machinery for keeping what they say.

The provision on electronic messages, added in 2014, was Congress's attempt to catch up.

It says an official may not conduct government business from a personal messaging account unless they copy an official account at the time, or forward a complete copy to one within twenty days.

An intentional violation is grounds for discipline. That is the whole of the sanction the provision itself contains.

The Archives' guidance extends the same logic to chat, text and the messaging apps built to delete their contents automatically.

Its position is straightforward: a message that is a record must be captured, and a setting that erases it before it can be captured does not change its status. It only guarantees the record is lost.

The rules, then, are clear. The weakness is in who enforces them.

The enforcement provision places the first duty on the head of the agency concerned. When records are unlawfully destroyed, the agency head must notify the Archivist and, with the Archivist's help, ask the Attorney General to act.

If the agency head does not, the Archivist must make the request and tell Congress.

It is, in other words, a statute an agency largely enforces against itself, through a department that sits in the same executive branch.

The Supreme Court held in 1980 that private citizens cannot sue under the records law itself to force the recovery of documents. Later decisions allowed suits challenging an agency's failure to seek the Attorney General's help, which is a narrower thing.

So for most purposes a deleted message produces a notification, a possible referral and perhaps a disciplinary file. What it does not reliably produce is a consequence for the decision the message was about.

That changes the moment the government is in court.

The civil procedure rule on lost electronic information applies to the government as it applies to any litigant. A party that should have preserved electronic material, because litigation was underway or reasonably expected, and failed to take reasonable steps to keep it, faces the court's remedies.

Those remedies are graded. Where material is simply lost, a court may order measures no greater than necessary to cure the harm to the other side.

Where a court finds the party acted with intent to deprive the other side of the information, it may presume the lost material was unfavourable, instruct a jury to that effect, or decide the case against the party outright.

That presumption is the sharpest tool in the whole area, and it lives in litigation rules rather than in the records statute.

The gap between the two regimes is the interesting part. The records law applies from the moment a message is sent, but has weak enforcement. The litigation rule has real teeth, but applies only once a lawsuit is on the horizon.

An official deleting messages about a decision nobody has yet challenged is violating the first and is largely beyond the reach of the second.

An official deleting messages after a lawsuit has been filed is in far more danger, and the danger falls not on them personally but on the government's case.

Review of an agency decision usually proceeds on the record the agency itself compiled, which is why the missing message matters so much. A court asked whether a decision was reasoned is entitled to ask where the reasoning went.

The practical lesson for anyone inside government is plain, and has been since 2014: the setting that deletes a message does not delete the obligation to keep it.

The lesson for anyone outside is less comfortable. The law treats the lost record as the public's loss, and in most cases the only party with standing to do much about it is the agency that lost it.