Update, 11/2/10: Dyer's request for a temporary restraining order was denied because he did not post a bond to cover any damages caused by the issuing of a the order. The Nov. 24 court hearing is still scheduled – a judge will hear arguments from both sides on whether a preliminary injunction should be issued.

The original story follows below.

The latest litigation between Howard County Board of Education member Allen Dyer and the board on which he sits will be heard in court later in November.

A hearing has been set for Nov. 24 in Howard County Circuit Court. The case pits Dyer – who is accusing the Board of Education of improper destruction of records, particularly e-mail – against a school system whose attorneys argue that it is complying with the law.

Dyer's lawsuit, filed Oct. 26, asked the court to issue a temporary restraining order and/or a temporary and permanent injunction that would forbid the school board and district employees from deleting or destroying public records, including email.  

The school board filed its opposition to the lawsuit the next day, arguing that Dyer did not have the legal right to file suit, and that the cost of any restraining order or injunction would cost the school system and taxpayers too much money.

Dyer claims records, including email, are being destroyed even though the board has not filed paperwork required under Maryland law, which requires governmental bodies to provide an inventory of their records and a schedule for when certain records will be sent to the state archives.

School system attorney Mark Blom counters that the board has a schedule of which documents must be kept forever and which can be destroyed and that the schedule has been approved by the state government.

Presently, any e-mail deleted from users' inboxes or outboxes are retained in backup files for 30 days. Other e-mail that has not been deleted remains within the users' personal e-mail folders.

The school board's opposition to Dyer's lawsuit came via outside attorney Judith S. Bresler of Columbia-based lawfirm Carney, Kelehan, Bresler, Bennett and Scherr.

Bresler argued that Dyer failed to follow state court rules by not posting a bond to cover any damages caused by the issuing of a temporary restraining order or preliminary injunction. 

Such orders and injunctions are asked for while a lawsuit goes forward. If granted – and if the school system went on to win the case – then the school system could be entitled the costs arising from the order or injunction.

Any such damages in this case would come from the cost of archiving all deleted e-mails beyond the usual 30 days. Michael Borkoski, technology officer for the Howard County school system, said in an affidavit with the court that such a measure would require additional software and additional computer server hardware.

What Borkoski termed "the least expensive option" would cost approximately $175,000 to $200,000, plus an additional $24,000 in annual costs, he wrote.

And an order to archive all e-mail – including spam e-mail that is now being blocked – would add to costs, as the system received about 550,000 spam e-mails just on Oct. 25, he wrote.

In addition, argued Bresler, Dyer has no legal standing to bring forth the suit because Maryland regulations call for public officials to notify the state archives of any unlawful record destruction, rather than filing a lawsuit.

A copy of the school board's legal filing can be viewed on this page.

Dyer believes he has legal standing to bring the case forward.

"I'm a board member; board members are individually liable," Dyer said in an interview a few days before filing the lawsuit. "At this point, my tail is on the line. I'm the one that goes to jail. That gives me standing. I should be sent to jail if I don't protect the public records."

Dyer argues that he has good reason for filing this lawsuit.

In his lawsuit, he said he attempted at three different school board meetings to have the board vote on stopping "document destruction" until the board has a written policy on retaining records.

Each time, however, he did not receive the backing of a second board member that is required to bring a topic up for a vote.