Supreme Court to School Districts: New Federal Rules

January 22, 2007

On December 1, 2006, amendments to the Federal Rules of Civil Procedure, which have been approved by the U.S. Supreme Court, went into effect.  These new rules have a significant impact on the manner in which schools and school districts manage, retain and destroy electronic documents.   

Initial reporting on the amendments focused on their impact on businesses and for-profit institutions; however, these rules also apply to school districts and not-for-profit entities.  School administrators are advised to re-examine their retention policies regarding electronic documents and to take action to ensure compliance. 

Background

The new rules were designed to address discrepancies between the treatment of documents stored in electronic media and those stored in printed or other “hard-copy” formats.   

In particular, information contained in e-mail communications, attachments and databases — and stored on computer hard drives and servers— had been routinely written over or destroyed.  As information technology continues to evolve at a rapid pace, the new rules were seen as necessary to ensure proper document archiving and accessibility. 

General Recommendations

School administrators should work with their IT departments to determine policies and procedures for handling and storing electronic communications and documents, keeping the following points in mind: 

• Subject matter is the key determinant of whether a document, e-mail or other type of communication should be retained, not the format in which that information was communicated or stored.  For example, a student discipline record created as an electronic document or attached to an e-mail must be retained for the same period of time as if it were a paper document.
• E-mail and electronic communications, just like their hard-copy counterparts, fall into three main categories:
• Administrative correspondence, including communications relating to the formulation, planning, implementation, interpretation, modification or redefinition of programs, services or projects of a school district.
• General correspondence, including non-administrative communications relating to or arising from routine operations of the programs, services, policies or projects of a school district.
• Transitory information, including records or communications of temporary usefulness that are not an integral part of the school district’s records or documentation of its functions, and are not essential to the fulfillment of statutory obligations.
• Administrative and general correspondence must be stored, maintained and destroyed according to state record retention laws and district retention policies.  Transitory information need only be retained until the purpose of the record or communication has been fulfilled. 
• School districts should develop, document and implement policies and procedures for routinely identifying, storing and destroying electronic communications and documents.  Ideally, a single person or department should be responsible for fulfilling this obligation in order to eliminate unnecessary replication of effort and to ensure compliance. 
• School districts should also take steps to ensure compliance with records-destruction schedules; frequently, they are in compliance with retention rules, but fail to destroy documents once these retention requirements have been fulfilled.