Attorney General's Office Completes City Of Boston Email Investigation
AG Coakley Issues Report Detailing Investigation's Findings; No Criminal Charges To Be Brought
The investigation by the Attorney General's Office sought to determine whether Michael J. Kineavy, Chief of Policy and Planning for the City of Boston, had committed a crime through his practice of routinely deleting emails and emptying various Microsoft Outlook Email folders on his work computer. The investigation included a review of thousands of pages of documents from the City of Boston, a forensic analysis of Kineavy's computer systems, and the interviews of more than a dozen witnesses, with the last interview taking place in June 2010.
The Attorney General's investigation revealed that, during the time that Kineavy routinely deleted his emails, the City of Boston's Employee Handbook indicated to employees that all email was automatically retained by the City's computer systems. Further, the City of Boston Archives and Records Management Division E-mail Management and Retention Policies specifically encouraged City employees to delete emails on a daily basis. Interviews with several City of Boston and Boston City Council employees revealed a misunderstanding among many employees about how the City's email system worked and how emails were maintained on that system. Based on these and other factors, no criminal charges are warranted against Kineavy because there was no evidence that Kineavy was knowingly "destroying" his emails.
"Our office conducted an extensive investigation into the email practices of Mr. Kineavy," Attorney General Coakley said. "Our investigation revealed that during the time Mr. Kineavy was accused of improperly deleting emails, the City's own policies indicated that all emails were being saved on a back-up server and specifically encouraged employees to delete emails on a daily basis. It also revealed a shared misunderstanding by many City Hall employees that emails were being backed up on the City's server. Based on these and other factors, the facts did not demonstrate that Mr. Kineavy was knowingly destroying his emails and do not support criminal charges against him."
In October 2009, the Secretary of State of the Commonwealth asked the Attorney General's Office to investigate whether Kineavy had committed a crime through his practice of routinely deleting emails on his City of Boston computer. The investigation was focused on a specific task - determining whether Kineavy's deletion of email was a crime. To sustain a conviction, the prosecution must prove that the person charged had a certain state of mind; that is, they must prove that Kineavy knew that he was destroying public records.
The AG's office conducted a comprehensive investigation with the specific task of determining whether Kineavy's deletion of email constituted criminal misconduct. First, it requested and received documents through six separate, formal requests from the City of Boston and the Supervisor of Public Records. Second, AG investigators and members of the Massachusetts State Police interviewed several City of Boston employees with relevant information, including Kineavy, the City's Management Information System Director, and Kineavy's Administrative Assistant. The Office continued to develop information and follow possible leads, with the final interview taking place in June. Finally, the AG's Computer Crimes Lab conducted a forensic analysis of Kineavy's computer systems to independently determine whether the forensic evidence was consistent with information obtained through the interviews and with the documentary evidence.
Among the evidence revealed during the investigation included:
The City's Email Policies
The investigation revealed numerous facts and evidence about the email retention policies of the City. First, from April 1999 through September 2009, the City of Boston's Employee Handbook indicated to employees that all email is automatically retained by the City's computer systems. A sample policy, from September 2009, is as follows:
All e-mail messages received and sent by City employees and affiliates are automatically stored on the City's backup systems for three years on an interim basis. Further, employees and affiliates should be aware that even when a message is deleted, it may exist on a backup tape.
Finally, and perhaps most importantly, there was only one City policy in place at the time that Kineavy was regularly deleting his emails that mentioned the City's records retention obligations. It was issued by the City of Boston Archives and Records Management Division. It actually encouraged employees, in concrete, easy to understand language, to routinely delete emails. The E-mail Management and Retention Policies, effective May 21, 2009, stated:
Except as provided below, the maximum retention period for e-mail shall be 90 days after the message is opened/read by its recipient, but employees are encouraged to delete the messages DAILY, immediately after reading, replying or taking other action concerning them.
Kineavy's Email Practices
Kineavy stated that he had a long-standing daily practice of deleting his emails on his desktop computer and then emptying his deleted items folder in his email program. He stated that he did not believe that this practice actually resulted in the destruction of the emails but, rather, that they were saved by the City's MIS Department.
As indicated by the specific City policies above, he had valid reason for such a belief. In fact, Kineavy was managing his email in a manner that was consistent with the direction he had been given by the governmental entity for which he worked.
Interviews with witnesses and forensic analysis of Kineavy's hard drives produced no evidence that Kineavy "double-deleted" emails with an understanding that he was actually destroying them.
City Hall's Email Culture and Email Practices of Other City Hall Employees
Kineavy's belief that emails were saved by the City's MIS Department was echoed during interviews of other City Hall employees. Those employees shared a common belief that "emails are forever" and could not be deleted. The investigation revealed a misunderstanding among City Hall employees - both in the Mayor's Office and elsewhere - about how the City's email system worked and how emails were maintained on that system. The prevailing view, supported by language in the City's various email policies, was that the MIS Department "backed-up" emails and that deleted emails were never truly lost. That was simply not true.
Indeed, complainant and former Boston City Council President, Michael Flaherty, shared many of these same beliefs with respect to the hundreds of emails per day that he received at his City Hall email account. He believed, like other City employees, that City Council Computers were backed up and that the MIS Department was responsible for backing them up.
Since the initial public records request, there have been a number of steps taken to remedy the problems that were uncovered. Through an investigation by the Secretary of State's Office, thousands of Kineavy's emails were recovered and released to the public. The City of Boston has also purchased and installed equipment that permanently captures and stores all email sent or received by City Hall employees. It also had updated its email policies and begun implementing a more comprehensive public record training schedule. These changes are necessary to assure further compliance of City employees and to maintain the ability of law enforcement to hold those who do not comply with public records law accountable.
The Attorney General's Office also believes that this case highlights the need for further changes to laws to ensure that the tools to ensure government transparency keep up with new technologies.
A full version of the AG's findings can be found here .
The investigation was handled by First Assistant Attorney General Edward Bedrosian, Assistant Attorneys General Jennifer Miller, Jim O'Brien, Tom Ralph, and Judy Zeprun, and the Massachusetts State Police assigned to the Attorney General's Office.