Judge warned city on e-mails in 2008

Officials failed to stop deletions

TIDYING UP Officials said that Michael J. Kineavy dragged his e-mails into the trash and emptied the folder every day. TIDYING UP
Officials said that Michael J. Kineavy dragged his e-mails into the trash and emptied the folder every day.
By Michael Levenson and Donovan Slack
Globe Staff / September 16, 2009

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Mayor Thomas M. Menino’s administration was warned by a state judge late last year that city employees were deleting e-mails in apparent violation of state public records law, but city officials failed to halt the practice.

The judge’s order, made in a lawsuit against the Boston Redevelopment Authority, shows that the problem of records destruction at City Hall has extended well beyond Menino’s closest aide, Michael J. Kineavy, whose e-mails the Globe sought through a public records request this summer.

Superior Court Judge Ralph D. Gants wrote in a November court order that BRA employees had been permitted to delete e-mails without keeping hard copies or electronic backups.

“It is plain that the BRA failed to comply with its obligation to retain e-mails in accordance with [state law],’’ Gants wrote. “Prior to 2007, the BRA frequently asked its staff to delete e-mails so that its e-mail storage load would not exceed what was desirable for the efficient use of its e-mail servers.’’

State public records law requires municipal employees to save electronic correspondence for at least two years, even if the contents are of “no informational or evidential value.’’ Penalties include fines of up to $500 or prison sentences of up to one year.

Months after the judge highlighted the BRA’s problems, the Globe sought e-mails from Kineavy, Menino’s chief of policy and planning. But the Menino administration said that Kineavy had been routinely deleting his e-mails in such a way that they were not preserved on city servers and that a search found only 18 e-mails to or from Kineavy between Oct. 1 and March 31.

City officials have said that Kineavy, who was dragging his e-mails into the trash folder and emptying the folder every day for five years, was merely trying to tidy up his inbox and believed that his e-mails would be saved elsewhere. City officials said they were not sure how many other employees might have deleted their e-mails as a result of the same practice.

“I don’t know how many people are as dedicated and as diligent as Michael at cleaning out their inbox,’’ said Dot Joyce, Menino’s spokeswoman.

Yesterday, the city, under orders from Secretary of State William F. Galvin to try to retrieve Kineavy’s deleted e-mails, said it has hired Boston-based computer specialists StoneTurn Group to conduct a forensic review of Kineavy’s computer. City officials said Kineavy was asked Monday night to stop using his e-mail as he left City Hall, and he has not used it since. His computer was seized yesterday morning and he was given a new computer, city officials said.

The city also has hired Robert J. Kerwin, a lawyer and past president of the Massachusetts City Solicitors and Town Counsel Association, for additional legal assistance with handling e-mail retention issues.

Galvin has ordered the Menino administration to deliver an inventory of the deleted e-mails to him in a meeting no later than Sept. 25.

“Our goal is to move on this as rapidly as possibly, and satisfy the need for public access,’’ Galvin said in an interview. “We will pursue this until we’ve exhausted every means.’’

Galvin said if he hits a roadblock, he will refer the matter to Attorney General Martha Coakley for possible prosecution. He cited the case of Richard Vitale, former House Speaker Salvatore F. DiMasi’s friend and former accountant. After Vitale refused to report lobbying income from a ticket brokers group, Galvin sent the case to Coakley, and Vitale was indicted in December. He is awaiting trial on lobbying and campaign finance violations.

Gants’s order in November was made in response to a lawsuit from the David Project, an Israel advocacy organization that had complained that the BRA was failing to respond to public records requests for documents pertaining to the sale of city land for a mosque in Roxbury.

Gants - citing testimony from the BRA’s chief legal counsel, deputy director for information management, and other top staff - wrote that “the BRA appears to have issued no . . . written policy and provided no training to its personnel regarding the protocol for retaining e-mails.’’

Gants did not specifically instruct the city to recover the missing BRA e-mails or take steps to preserve future e-mails. But the BRA, aware several months before the order that it needed to address the problem, bought e-mail backup software for its 300 employees in June 2008 and recently hired a $68,268-a-year archivist to help preserve public documents. The agency has not, however, put in place an e-mail-retention policy.

Susan Elsbree, a BRA spokeswoman, said training procedures and a policy should be ready in weeks. Joyce said the rest of city government, prior to Gants’s order, had already been “looking at a revised policy’’ for keeping e-mails. In 2007, a city panel largely appointed by the mayor, the Archives and Records Advisory Commission, received a grant to develop a new policy for retaining and archiving electronic records, Joyce said.

The policy, which took effect May 21, requires employees to move substantive e-mails that would be subject to public records laws into folders that will be backed up on city servers.

Prompted by the Globe’s request for Kineavy’s e-mails, the city, in July, also launched a temporary “journaling program’’ to save employee e-mails.

Before May, the city did not have formal rules for saving e-mails, officials said. City employees are encouraged to attend general training on public records law annually.

As the issue continued to reverberate in the mayor’s race, two of Menino’s challengers, Councilors at Large Michael F. Flaherty Jr. and Sam Yoon, said they are seeking a council hearing to review deletion of e-mails and the city’s compliance with state public records law.

Andrea Estes of Globe staff contributed to this report.