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Access to Electronic Communications of Government Officials in the 50 States

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  • 1. Access to ElectronicCommunications As technology brings electronic communications such as e-mail, text messaging and instant messaging into the mainstream of workday activity, governments from the federal down to the local levels are charged with evaluating how to treat those communications. Are they public records, subject to release just as any other record? Can the activity that occurs in those exchanges constitute a “meeting”? While new cases and legislation may specifically address these and related issues, many governments are still figuring out how to treat their electronic communications. Spring 2009
  • 2. An overview of access to electronic communications As the Unites States government steadily progresses in its shift The federal government is not the only government body thatfrom paper to electronic records, transparency law has unfortu- appears to be making the small, but necessary, jump in logic thatnately struggled to keep up. It is a common obstacle in emerging that these types of electronic communications are in fact officialbodies of law: the practical conflicts have developed ahead of a records — just as crucial as paper records — to which the publicfirm legal solution. should have access. Reports that the Bush administration may have deleted millionsof official White House e-mail messages and that it conducted of- State Law — Developing, But Far From Settledficial business through private Republican Party e-mail accounts On a smaller scale, the body of law on government electronichave thrust this issue to the forefront of the national stage. The communications across the states has been growing slowly over theadministration blamed technological failure for the loss of the past few years as e-mail use and mobile device communication havee-mail. But whatever the cause, the gaping hole in the nation’s become more prevalent in government offices. The appropriate-presidential archives sparked reintroduction of the Electronic ness of releasing the content of these communications is especiallyMessage Preservation Act, H.R. 1387, in Congress in March 2009. crucial, as the release of text messages exposed serious corruptionThe measure, if passed, would strengthen federal legal require- in the form of perjury in a case that cost Detroit taxpayers morements for the retention of such messages. than $8 million. That 2008 case led to the ouster and prosecution The notion that official government e-mail should be stored and of former Detroit Mayor Kwame Kilpatrick, and a Pulitzer Prizeopen to the public is not a new one. The Clinton administration for the Detroit Free Press.— the first in which electronic communication became widespread A majority of states now recognizes that public officials’ elec-— archived e-mail using its Automated Records Management tronic communications should be processed and released in theSystem (ARMS), which the Bush administration dismantled in same way as hard copies of official communications. Of course,favor of a new system called Electronic Communications Records states differ on the range of electronic communications they sayManagement System (ECRMS). Many of the missing messages should be exempt from records requests. A few states excludewere lost between 2003 and 2005, roughly the time period in governors or other public officials from such requests altogether,which the switch was taking place. The ARMS program wasn’t though most do not. Public officials increasingly conduct gov-foolproof — some e-mail messages went missing in the 1990s, too ernment business with their personal e-mail accounts and cell— but Clinton’s policy stipulated that the Presidential Records Act phones or, conversely, use government accounts for personalrequired maintenance of all records, including e-mail. It is unclear communication. That has presented its own dilemma: Shouldwhat the Bush administration’s policy on electronic records was. personal electronic communications be exempt because of their In January 2009, as the Bush administration prepared to close private nature? Most states that have addressed the issue of elec-up shop, Magistrate Judge John Facciola issued an order in National tronic communication retention have determined that job-relatedSecurity Archive v. Executive Office of the President that all White communications must be saved. How long they should be kept,House e-mail records had to be protected during the transition. however, is an unsettled matter. There is ongoing or recentlyFacciola took the opportunity in his order to underscore the settled litigation on this issue in several states, including Missouribroader value of electronic records in the public arena: “[T]he and North Carolina.emails that are said to be missing are the very heart of this lawsuitand there is a profound societal interest in their preservation. They Electronic Communications Under Sunshine Lawsare, after all, the most fundamental and useful contemporary re- Government officials are more frequently conducting businesscords of the recent history of the President’s office.” through e-mail, cellphone calls, text messages and other forms of The watchdog groups Citizens for Responsibility and Ethics electronic communication. Accordingly, states including Colorado,in Washington and the National Security Archive, which filed the Tennessee and Florida have moved to include records of thesesuit, agreed with the government to stay the case in April 2009 as electronic communications as items subject to request under localthey worked on an agreement with the new Obama administration. Sunshine laws. Courts have developed more precedent on e-mail than any other form of electronic communication. Many state courts have Access to Electronic Communications considered the classification of a series of e-mail exchanges as an open record or meeting. Some have also heard cases regarding the © 2009 The Reporters Committee for Freedom of the Press overlap of official and private communication in both government- Story by Cristina Abello. provided and personal accounts. That point is at issue in one Alaska citizen’s lawsuit to compel disclosure of official e-mail Gov. Sarah Matthew B. Hanson contributed to the legal research in this guide. Palin transmitted through a private Yahoo! address. On the other A special thank you to the nearly 100 volunteer lawyers around side of that coin, Iowa Gov. Chet Culver recently announced that the country who aided us by researching the laws in their states. he will release e-mail sent in his first two years of office using This guide was funded by a grant from the McCormick private computers and non-government servers that were used Foundation. to conduct state business. Requests to access public officials’ text messages and cell phone records have also generated litigation in recent years. The Detroit2 Access to Electronic Communications Spring 2009
  • 3. Free Press and The Detroit News won a lawsuit to compel disclosure silence on the issue does not indicate a specific attempt by stateof text messages that eventually revealed that Kilpatrick and one of officials to exempt e-mail and other electronic communicationshis aides lied under oath. That led to 99 days in jail for Kilpatrick, from sunshine laws. Finally, on the other end of the spectrum, a fewwho pleaded guilty to obstruction of justice in the matter. states have taken steps to shield from records requests the e-mail Computer-based instant messages in government offices are communications between public officials and their staff members.not immune from open records requests, either. Although the Rhode Island, Arkansas, California, Louisiana, Massachusetts,messages usually have to involve discussion of public business Michigan and South Dakota exempt their governors from havingto be considered public records, in cases of potential corruption to disclose e-mails under state sunshine laws.or improper behavior, even private instant messages have beenreleased. In 2008, for instance, Ohio Attorney General Marc Electronic Communications as Public MeetingsDann was impeached and eventually resigned after the Columbus States have split on whether multiple e-mail messages betweenDispatch requested records pursuant to a sexual harassment case public officials qualify as a public meeting. The designation of an e-mail chain as a public meeting relies on the theory that e-mail and other similar communications can be so instantaneous that they might allow officials to conduct government business in place of convening at a live, in-person meeting. Arizona law says that, for purposes of its public meetings laws, meetings can take place “in person or through technologi- cal devices.” A Delaware attorney general opinion, responding to a complaint about a local nominating committee’s practices, found that “serial e-mails” allowed com- mittee members to “receive and comment on other members’ opinions and thoughts, and reach a consensus on action to take. … [The office] believe[s] that under FOIA this can amount to a meeting of the public body, and that the open meeting law does not only apply to a physical gathering in a single place and time.” Missouri’s access laws were expanded AP PHOTO/MANUEL BALCE CENETA in 2004 to define a public meeting as any meeting at which any piece of public busi-Archivist of the U.S. Allen Weinstein, center, testified in 2008 at a House oversightcommittee hearing on electronic records preservation at the White House. ness is discussed, formulated or decided, and which is attended by a majority of the body’sand inadvertently uncovered instant messages and e-mail that members. The new laws specifically mention online chat rooms andrevealed an affair between Dann and his scheduler. message boards as locations where public meetings may take place. Virginia, however, has taken the opposite position in saying that,E-mail Records as Public Records under its open meetings law, a meeting cannot be held by e-mail, While not all states have explicitly addressed whether e-mail because there is no physical “assemblage” of people. records are public, notably, no state has wholly excluded e-mail The split among states on this issue seems to stem from dif-from the range of records subject to its open government law. A fering constructions of sunshine laws’ gathering and assemblagefew states, such as Colorado and Tennessee, have enacted laws requirements. Electronic communications like e-mail presentthat expressly state that public officials’ e-mail is subject to open public officials the chance to do substantial government businessrecords laws and may be subject to public inspection. like that which occurs in meetings without ever really “meeting;” Attorneys general from some states, including Florida, have but on the other hand, most public-meetings statutes require thatissued advisory opinions that e-mail involving official business is a there be some kind of physical “gathering” or “assemblage.”public record. Others, including North Carolina, South Carolinaand most recently South Dakota, necessarily include e-mail in Public E-mail, Cell Phone Accountsstate sunshine laws because the language specifies that it covers Used for Private Communicationsgovernment records “regardless of physical form.” Perhaps the most contentious issue in deciding whether certain Still other states have gone the judicial route to incorporate e- communications are subject to state sunshine laws is whether theymail into the domain of public records, as citizens and journalists were transmitted or received as part of an official’s job. “‘Private’ orhave brought lawsuits to compel disclosure. Ohio, for example, ‘personal’ e-mail messages ‘simply fall outside the current defini-now defines e-mail under “electronic records” in its law. Its courts tion of public records,’” according to the Supreme Court of Florida.have said: “E-mail messages and correspondence are ‘documents, Just as public officials cannot escape open records requirements bydevices, or items’ under the first prong of the definition of ‘re- having a private entity maintain physical custody of the records,cords.’” In Virginia, one court put it bluntly: “There is no question private records do not become subject to open records laws simplythat e-mails fall within the definition of public records.” by being in the custody of a public official. A Tennessee court in Several states, such as Alabama, do not address e-mail in either 2005 incorporated the same line of reasoning into its case law,their statutes or case law related to open records. But these states’ relying heavily on the Florida decision.Spring 2009 Access to Electronic Communications 3
  • 4. Other reasons that a public official’s e- of Ohio open records laws.mail might be excluded from open records Confusion arises wheredisclosure include lack of relevancy to the courts — and governmentofficial’s job; exposure of intimate details officials themselves — haveabout the person’s personal and private life; to decide what must be keptand limitations on the disclosure of some and what may be deletedpersonnel records. without always having clear One Arizona opinion demonstrates a guidelines or parameters.common approach to the threshold deter- Even in cases where e-mailmination of when officials’ e-mail becomes messages are consideredan open record: The Arizona Supreme Court public records, laws are fre-held that the state’s inclusion of e-mail in quently silent on whetherits open records law “does not encompass any messages may be deleted,documents of a purely private or personal and if so, after how long. Innature. Instead, only those documents hav- the Ohio case, officials wereing a ‘substantial nexus’ with a government not wrong to have disposedagency’s activities qualify as public records.” of items that were “no longer A Colorado court decided a case brought of administrative value” andby The Denver Post with the finding that “not otherwise required toprivate cell phone records are not subject to be kept, in accordance withrequests under the state Open Records Act the office’s properly adoptedeven if an official admits to using the phone policy for records retentionfor official public business. The newspaper and disposal.”sought more than 19 months of cell phone Several high-profile re-records that were thought to contain the cords requests and lawsuitsphone numbers of people with whom Gov. have been filed in recent AP PHOTOBill Ritter had discussed state business. years to challenge the fre- Another dispute occurred in New Jersey: The controversy surrounding former Detroit Mayor quency with which officials Kwame Kilpatrick led state courts to include textGov. Jon Corzine was initially ordered in are allowed to delete job- messages in the list of accessible open records.May 2008 to turn over more than 700 pages related e-mail. Missouriof e-mail messages he exchanged with his former girlfriend Carla Gov. Matt Blunt in December settled a lawsuit that arose fromKatz, a labor union leader. Eventually, New Jersey’s intermediate a whistleblower’s outing of Blunt’s plan to regularly delete officeappellate court held that executive privilege shields the commu- e-mail messages he wanted to keep away from news outlets andnications from the public. On March 19, New Jersey’s highest constituents — an open records violation. A settlement in the casecourt declined to hear an appeal from the plaintiff, a Republican called for the governor’s office to turn over thousands of e-mailstate politician, ensuring that the e-mail messages would not be messages to a special investigator.forcibly released. Texas Gov. Rick Perry’s office has a policy of deleting of- fice e-mail once a week — a policy that has been in place sinceText Messages George W. Bush held the office in the late ’90s. John Washburn, The resignation and prosecution of former Detroit Mayor a blogger from Wisconsin, took issue with this short time periodKwame Kilpatrick highlighted Michigan courts’ willingness to for e-mail retention and set up a computer-generated process toinclude text messages in the list of accessible open records, as well repeatedly request the governor’s e-mail. Though the governor’sas the conflicts that can arise when the electronic communications office ultimately was willing to comply with the request, it pre-in question are transmitted and maintained by private companies. sented Washburn with a $568 bill for its efforts in compiling theThe Michigan Court of Appeals in February 2008 ruled that text first four days’ worth of requested e-mail messages. Washburnmessages between Kilpatrick and a top aide were public records. eventually paid the office’s fees with the help of donors and postedThe two had maintained an extramarital affair, lied about it under the e-mails online.oath in a prior case, and were investigated for using city funds And in North Carolina, after a controversy erupted overto pay off a fired police officer who had knowledge of the affair. reports that the governor’s press office ordered the state Depart- However, it remains an open question whether government ment of Health and Human Services to delete e-mail addressedagencies are required to maintain in-house records of officials’ to Gov. Mike Easley, the governor himself commissioned a studytext messages, as well as if state sunshine laws extend to the text- in which journalists and administrative law specialists developedmessage records maintained by the private data carriers in such recommendations for how his office should manage its e-mailcases. communications. But the recommendations, which included treat- ing electronic records the same as paper records and mandatingE-mail Retention Policies policies including training and archiving messages, are not legally Whether states conclude that electronic communications con- binding.stitute open records, public meetings or both, the sheer volume of E-mail retention policies likely will generate increasingsuch records raises essential issues regarding their maintenance. amounts of litigation — and deservedly so. In states where the is- A recent Ohio opinion stated that a state law that would give sue has not been settled by statute or case law, there are effectivelygovernment employees the authority to delete work-related e-mail no bright-line legal mandates requiring officials to retain e-mailwas unreasonable because it would “authorize the unfettered de- records for a given period of time. This presents the risk of officialsstruction of public records,” and that if such messages are deleted doing what Blunt and Easley were accused of — deleting e-mailin violation of statutory obligation, it would constitute a violation to duck state sunshine law requirements. u4 Access to Electronic Communications Spring 2009
  • 5. A state-by-state guideAlabama part of the public record and whether the the “broad” right of access to government The Alabama Open Records Law pro- public is entitled to an injunction stopping records, which are increasingly maintainedvides access to “public writings,” without the official use of private e-mail accounts in electronic form. 88 Ops. Atty. Gen. 153.much elaboration. But recent statutes, case because this practice obstructs the public’s Courts construing the PRA have madelaw and attorney general opinions have access to the public record.  The case is clear that e-mail messages sent to or byrecognized that the term includes elec- fully briefed, and argument is expected in government officials become part of thetronic records (and presumably electronic June 2009. government record, and that neither themessages). Ala. Code § 22-9A-21(f) (1997). Under the law, each government agency officials nor their constituents have reason- A 2007 court decision denied a request should have regulations or policies regard- able expectations of privacy in such com-for about 350,000 county employee e-mail ing its retention of records. AS § 09.80.140. munications. Holman v. Superior Court, 31messages, citing that the defendants — only Media L. Rep. 1993 (2003).county commissioners — were not the Arizona On the other hand, in a decision notlegal custodians of many of the messages. Under Arizona law, records subject to favorable to access to government e-mailAccordingly, the court said, they did not public disclosure include items produced messages, the First Appellate Districthave “legal authority or responsibility” or reproduced on “electronic media.” held that the Public Records Act didto release them; also, screening the mes- A.R.S. § 41-1350. E-mail communications, not preclude a government agency fromsages to determine if they were subject to including those stored on backup tapes, are recovering more than $26,000 in costs as-disclosure under the open records law was required to be disclosed as public records. sociated with retrieving e-mail messagesdeemed an “enormous task” that created Star Publishing Co. v. Pima County Attorney’s that a school had sought for use in litigation“unreasonable and undue interference” Office, 891 P.2d 899 (Ariz. Ct. App. 1995). against the City of San Rafael. St. Vincentwith the work the government should be However, e-mail of a personal nature, such School for Boys v. City of San Rafael, 160 Cal.doing. George v. Glasscock, No. CV-07-40 as grocery lists or e-mail messages between App. 4th 1426, 1437-39 (2008).(Cir. Ct. of Morgan County, Ala., June family members regarding dinner plans, is There are no published court decisions12, 2007). not subject to disclosure under the public determining whether city council members records law. Griffis v. Pinal County, 156 P.3d may shield e-mail communications by us-Alaska 418, 421 (Ariz. 2007). ing their private e-mail accounts. Such a The public records law does not specifi- holding would create a large loophole incally identify or address e-mail, but there Arkansas the Public Records Act. However, in Tracyis no evident argument that would exempt A public record includes “electronic or Press v. Superior Court, 164 Cal. App. 4the-mail from disclosure under the public computer-based information,” Ark. Code 1290, 1294-1295, 1300 (2008), the courtrecords law. E-mail was treated the same as Ann. § 25-19-103(5)(A), so the state open refused to allow discovery of a city coun-non-electronic documents in a 2000 case, records law encompasses e-mail. Ark. Op. cilwoman’s e-mail communications with ain which a court held that the government Att’y Gen. No. 2001-305. This opinion laboratory because she had sent them fromneed not disclose to the public commu- was issued by the attorney general prior to a private account.nications that would affect the quality of a 2001 legislative amendment revising the Finally, in San Lorenzo Valley Communitygovernmental decision making. Docu- statutory definition to include this infor- Advocates for Responsible Education v. Sanments that are both “predecisional” and mation, since the act was meant to include Lorenzo Unified School Dist., 139 Cal. App.“deliberative” are presumed privileged; to “data compilations in any form.” Ark. Op. 4th 1356, 1411 (2006), the court stated thatgain disclosure, a requester must establish Att’y Gen. Nos. 2000-096, 99-018 (elec- the school superintendent’s testimony thatthat the public’s interest outweighs the tronically stored e-mail is public record). she had neglected to produce e-mail mes-assertion of privilege. Gwich’in Steering Additionally, it is the content of a sages in response to a Public Records ActCommittee v. State, Office of the Governor, record, not its medium of storage (paper request, although she later produced them10 P.3d 572 (Alaska 2000). or electronic,) that dictates its retention at deposition, was insufficient evidence of As to current issues in Alaska con- disposition under the Arkansas Freedom failure to produce available documents incerning access to electronic messages, in of Information Act. Chapter 3, § 3.05[f], a timely fashion under the CPRA.  TheOctober 2008 Andree McLeod filed suit and Chapter 7, § 7.02. court thus credited the superintendent’sagainst the Office of the Governor seeking testimony that her practice was to deletedisclosure of 1,100 e-mail messages from California e-mail, and so she did not know that herGov. Sarah Palin that concerned public The California Public Records Act re- laptop computer was actually saving somebusiness, but were sent via private e-mail quires that the government grant prompt of them.accounts. There are two main issues before access to all non-exempt e-mail written tothe court in the case. The first is whether or by government officials. Government Coloradoany e-mail messages sent or received by Code Section 6252 (defining “writing” “Electronic mail” includes electronicpublic officials concerning state business covered by the PRA as including electronic messages that are transmitted through aare part of the public record as a matter of mail) and 6253.9 (requiring the govern- local, regional, or global computer net-law, even if the communications were sent ment to make the requested information work. Colo. Rev. Stat. § 24-72-202(1.2).or received via private e-mail accounts and available in any electronic format in which However, content of electronic mail thatnot through the state server. The second it holds the information). These two provi- does not bear a demonstrable connectionissue is whether the e-mail messages are sions, considered together, give meaning to to discharge of public functions or to theSpring 2009 Access to Electronic Communications 5
  • 6. receipt or expenditure of public funds is photographs, cards, tapes, recordings or processing software, or other material,not a public record. Denver Pub’g Co. v. other documentary materials, regardless of regardless of the physical form, character-Board of Cty. Commrs. for Arapahoe Cty., physical form or characteristics prepared, istics, or means of transmission, made or121 P.3d 190, 2005 WL 2203157 (Colo. owned, used in the possession of, or re- received pursuant to law or ordinance or inSept. 12, 2005). tained by a public body” and expressly in- connection with the transaction of official In recent years, government entities cludes “information stored in an electronic business by any agency.”have sought to dissuade open records format.” D.C. Code Ann. § 2-502(18). In a 2008 Florida Attorney Generalrequests by erecting significant financial Advisory Legal Opinion, it was reaffirmedbarriers because of the Colorado Open Delaware that “e-mail messages made or receivedRecords Act’s ambiguous fee provisions. The attorney general has evaluated by agency employees or officials in con-For example, when the Rocky Mountain several instances of whether electronic nection with official business are publicNews requested e-mail messages and cor- communications constituted “meetings” records and are subject to disclosure in therespondence between employees of the under the Delaware FOIA. absence of an exemption.” Op. Att’y Gen.Jefferson County Sheriff’s Department When two county council members, 08-07 (2008). However, personal e-mailand Jefferson County School District who did not constitute a quorum of the messages are not public records, even iffollowing the Columbine High School council, exchanged messages, it was not placed on a government-owned computermassacre, the county responded that it considered to be a meeting subject to system. State v. City of Clearwater, 863 So.would cost a minimum of $1.07 million for FOIA. However, a phone call between six 2d 149, 150 (Fla. 2003).county attorneys to retrieve and review the members did constitute a meeting under A January 2009 report by the Commis-electronically stored communications and the law. In that opinion, the attorney gen- sion on Open Government Reform founddetermine which were required to be made eral said, “We caution all public bodies to that “the increased use of communicationspublic. The newspaper dropped the request be careful not to discuss matters of public technology including personal computersafter the county refused to waive the fees. business by electronic means in such a way and handheld devices has changed theThe cities of Centennial and Denver have as could violate the open meeting require- nature of communication but it has notalso both responded to targeted requests ments of FOIA.” Del. Op. Atty. Gen., diminished the value of Florida’s opento inspect public officials’ electronic com- 04-IB17, 2004 WL 2639714 (Del. A.G. government laws or the need for publicmunications by requiring that the requester Oct. 18, 2004). officials to consistently follow the law.”pay an approximately $2,000 fee. Electronic communications need not Commission on Open Government Re- For retention of records, including occur in “real time,” such as instant mes- form, Final Report (Jan. 2009).electronic records, agencies must maintain saging, chat or communications similar to “E-mail communications betweena records management program with docu- a telephone conference call, to constitute members of a commission are public recordmented policies and procedures. C.R.S. § a meeting. Three members of a nominat- and must be retained by law. Such discus-24-80-102.7. ing committee (constituting a quorum) sions may violate the open meetings law, who exchanged a series of e-mail messages which applies to any discussion of publicConnecticut over two days, resulting in a consensus of business between two or more members Connecticut’s Freedom of Information names to submit to the city council, were of the same board or commission.” Also,Commission has held that an exchange of deemed to have held a meeting under “the use of private computers and per-e-mail correspondence among a quorum FOIA. Del. Op. Atty. Gen. 03-IB11, 2003 sonal e-mail accounts to conduct publicof members of a board or agency can con- WL 21431171 (Del. A.G. May 19, 2003). business does not alter the public’s rightstitute a “meeting” for the purposes of the Because electronic messages meet the of access to the public records maintainedstate’s Freedom of Information Act. Emer- criteria for “public records” set forth in on those computers or transmitted by suchick v. Ethics Comm’n, Town of Glastonbury, 29 Del. C. § 502(7), they, like other re- accounts.”No. FIC 2004-406 cords, may be subject to all provisions of The commission noted, however, that Agencies are permitted to delete e-mail Delaware’s Public Records Law, 29 Del. retention issues were “less clear” whenmessages at will if they are “transitory” in C. § 501-526. Accordingly, for purposes public officials or employees used portablenature, meaning “non-record material such of retention and back-up, e-mail is treated handheld devices to send text or instantas junk mail, publications, notices, reviews, the same as paper records under 29 Del. messages to each other. It said the publicannouncements, employee activities, rou- C. § 501(c). records law most likely did not apply totine business activities, casual and routine However, a 2006 attorney general such messages because they are “transitorycommunications similar to telephone opinion suggested there was no duty to in nature” and “analogous to the spokenconversations.” E-mail communications retain e-mail that may have qualified as a word.” However, a “discussion of publicthat are not transitory but are “less than public record. Because the requested e-mail business between two members of thepermanent” are treated the same as their messages had been deleted, the attorney same collegial body using text or instantpaper equivalent for retention purposes. general said the open records law was not messaging technology is a clear violation“Permanent or archival” e-mail messages, violated when the agency was unable to of the open meetings law.”such as those documenting state policies produce the e-mail. Del. Op. Atty. Gen.,or processes, may be deleted only after 06-ID23, 2006 WL 3663142 (Del. A.G. Georgiatransfer to paper or microfilm. Nov. 27, 2006). E-mail documents are not treated any differently than written correspondence.District of Columbia Florida Because the Open Records Act applies Although e-mail is not specifically According to Fla. Stat. § 119.011(12) to both “computer based or generatedaddressed by the statute, it should fall (2008), “public records” include “all docu- information” and to “letters,” e-mail cor-within the definition of a “public record,” ments, papers, letters, maps, books, tapes, respondence is subject to it. O.C.G.A.which “includes all books, papers, maps, photographs, films, sound recordings, data § 50-18-70 (a).6 Access to Electronic Communications Spring 2009
  • 7. A case was pending as of May 2009 randa, books, papers, maps, photographs, most requestors because state governmentto determine whether the Open Records microfilms, cards, tapes, recordings, elec- is increasingly imposing heavily restrictiveAct was violated when the Department of tronic data processing records, recorded “review” charges.Agriculture charged $4.3 million for the information and all other documentary The statute permits government torecovery of archived e-mail. E-mail is to be materials, regardless of physical form or charge for the actual costs of documentkept for five years under the state’s reten- characteristics, having been prepared, or copying. Retrieval charges have been addedtion schedule, but the department was not having been or being used, received, pos- as a cost that agencies can recover fromfollowing the requirements at that time. sessed or under the control of any public requesters, but now agencies are requiringGriffin Ind. v. Georgia Dep’t of Agriculture, body. 5 ILCS 140/2(c). E-mail is treated as a requestor to pay search fees based onNo. 2005-CV-97935. In practice, however, any other public record. the number of data fields and electronicseveral agencies claim ignorance of the Conference calls, whether by video, records searched.existence of retention schedules and do audio, telephone or any kind of electronic Beyond that, agencies are followingnot follow them. means or “contemporaneous interac- the lead of the governor’s office by stating tive communication” may be considered that e-mail messages will not be producedHawaii meetings under the Open Meetings Act. 5 until the requester agrees to reimburse the Under state law, there is no distinc- ILCS 120. E-mail constitutes an electronic government for time taken by staff lawyerstion between the treatment of electronic mean of communication and is covered by to review whether records that matchmessages and paper documents in terms the Act’s definition of “meeting.” 5 ILCS search terms are otherwise exempt orof storage and retention. Both types of 120/1.02. privileged. These attorney review chargesdocuments are grouped together within shift the cost of access from government tothe general definition of a “government Indiana the requester and, in many cases, make therecord” as “information maintained by an Electronic mail is a public record and cost of access unaffordable.agency in written, auditory, visual, elec- must be available for inspection and copy- However, the governor’s office in Maytronic, or other physical form.” Haw. Rev. ing unless an exception to disclosure in the 2009 released e-mail messages sent usingStat. § 92F-3. Any case or opinion that Access to Public Records Act (“APRA”) private computers and non-governmentreferences the treatment and retention of applies. servers in response to a request from The“government records” applies equally to Whether e-mail messages of a personal Associated Press. The content of the e-mailelectronic messages and paper documents. nature are public records can be a difficult, dealt with the conduct of state business, Hawaii’s legislature deferred two bills in fact-intensive question for the courts. which the governor’s office said led to the2009 that would have amended the defini- The public access counselor generalized: release.tion of “government record” to expressly “considering the APRA’s broad definitioninclude electronic records. HI S.B. 678 and of ‘public record,’ an e-mail that is sent, Kansas1652 were to be discussed further in com- received, or stored on the public agency’s Electronic messages are treated asmittee. Several bills were also introduced computer server may well be ‘maintained public records. (Attorney General opin-in 2009 to address retention — primarily or retained’ by the public agency that pro- ion 2002-1.) However, e-mail written byto incorporate the term “maintain” into the vides the server, even if the message of a public officials and sent on, to or fromlaw and to require agencies to create a plan personal nature is ‘created’ by an individual personal-use computers but that does notfor record retention. These bills, too, were public employee rather than the public go through public agency servers are notdeferred for further committee discussion. agency.” (Feb. 1, 2006 Informal Opinion: public records. The state’s Office of Information Prac- Guidance Regarding Whether Personal Topeka city commissioners’ use of texttices issued an opinion that intra-agency Electronic Mail is a Public Record; see also messaging during a public meeting in 2007e-mail must be disclosed in a matter related Feb. 1 2006 Informal Opinion: Alleged led the city attorney to issue a recommen-to an alleged criminal violation. OIP Op. Violation (finding that personal e-mail is dation to discontinue the practice.Ltr. No. 04-12 (July 9, 2004). able to be disclosed)). The retention of electronic messages is KentuckyIdaho governed by Indiana Code 5-15; electronic Personal e-mail between two state E-mail messages that are “informal messages should be retained in the same government employees using state e-mailcommunications between an employee manner as paper documents. Whether accounts on state computers must beand her supervisor, unrelated to person- e-mail is to be retained depends on the disclosed under Kentucky’s Open Re-nel administration” are not public records content of the e-mail. (See April 4, 2007 cords Act. Justice & Public Safety Cabinetunder the open records law. “Rather, it is Opinion, 07-FC-58.) Not all e-mail mes- v. Malmer, et al, Franklin Cir. Court No.their relation to legitimate public interest sages need be retained or transferred to 06-CI-1373.that makes them a public record.” Cowles the state archives; for example, personal The Open Records Act and relatedPublishing Corp. v. Kootenai Co. Board of or spam e-mail is not subject to retention public access and retention requirementsCounty Commissioners, 144 Idaho 259, 159 and may be deleted. apply equally to electronic and paper re-P.3d 896 (2007). cords. KRS 171.410(1) (defining “public Electronic messages are legally treated Iowa record” for purposes of Kentucky’s publicthe same as other records (paper docu- Iowa’s General Assembly has not yet agency retention statutes to include paperments, etc) in terms of retention and passed its much-discussed open records and electronic records).back-up. reform legislation. Thus, the boundaries However, each state and local agency of electronic records access will continue is required by KRS 171.680 to establishIllinois to be determined by Iowa Code Chapter its own records retention protocols, sub- Public records are defined as all records, 22. Meaningful access to such records, ject to the administrative regulation andreports, forms, writings, letters, memo- however, is practically beyond the reach of oversight of the Kentucky DepartmentSpring 2009 Access to Electronic Communications 7
  • 8. for Libraries and Archives. Most record same extent as paper records. The specific adopted formal standards for the storage,retention schedules adopted by Kentucky’s retention period depends on the subject retrieval and maintenance of long-termstate and local government agencies differ- matter of the records. electronic records, but many municipalitiesentiate among various types of electronic and governments have voluntarily adoptedand paper records. These vary widely from Maryland individual policies for retention of elec-agency to agency. E-mail can constitute a public record, tronic messages. whether printed or stored electronically.Louisiana 81 Op. Att’y Gen. Md. 140, 144 (1996). Michigan E-mail messages are treated the same Access to such records depends on their Though the state FOIA does notas other paper records under the open re- content, not their form. Md. State Gov’t expressly define electronic messages ascords law. La. Rev. Stat. Ann. § 44:1; City Code Ann. §§10-611 et. seq. (Maryland public records, two cases holding that tapeof Pineville v. Aymond, 982 So.2d 292 (La. Public Information Act). Maryland’s State recordings and computer records were sub-App. 2008). Archivist and the Records Management ject to the law strongly suggest that most Requesters in Louisiana are able to Division of the State’s Department of electronic messages would fall under therequest electronic copies of records under General Services create regulations set- law. Payne v. Grand Rapids Police Chief, 178an April 2009 ruling from the state Court ting standards for record retention for Mich. App. 193, 443 N.W.2d 481 (1989);of Appeals. In Johnson v. City of Pineville, each state entity, including with respect to Farrell v. City of Detroit, 209 Mich. App. 7,2009 WL 929841 (La. App. 2009) the court electronic records. Md. State Gov’t Code 530 N.W.2d 105 (1995).held that a requester should be accom- Ann. §§9-1007 and 10-632. Specifically, government text messagesmodated when seeking the reproduction were found to be public in recent cases,of records on a CD, DVD or flash drive. Massachusetts Flagg v. City of Detroit, 252 FRD 345, 356,The court explained, “We are dealing with Because Massachusetts public records 360 (E.D. Mich. 2008), and the high-pro-a developing area of law and we are quick to laws consider public “all . . . documentary file cases People v. Kilpatrick, No. 08-10496,emphasize that this opinion does not stand materials or data, regardless of physical and Detroit Free Press v. City of Detroit, No.for the proposition that every member of form or characteristics,” G.L. c. 4, § 7, 08-100214-cz, in which hundreds of textthe public should always be allowed to re- cl. 26; 950 CMR 32:03, it includes all messages of the former mayor of the cityproduce the public records in any way he government records generated, received of Detroit were considered public records.chooses. . . . Given that this information or maintained electronically, includingtechnology is readily available and is easily computer records, electronic mail, and Minnesotaused and understood, we find no reason computerized records. All e-mail created or The Data Practices Act does not dealwhy the public should not be allowed the received by an employee of a government with “records” but rather with “data,”convenience of having electronic copies unit is a public record. SPR Bulletin No. — more specifically, “government data,”provided to it at the legally allowed cost.” 1-99 (Feb. 16, 1999; revised and reissued which is defined as information “col- According to the Louisiana State Ar- May 21, 2003). The Massachusetts Public lected, created, received, maintained orchives policy, e-mail of all government Records Division requires all government disseminated by any state agency, politicalbodies should be subject to the same offices to establish written policies regard- subdivision, or statewide system regardlessrecords retention schedule as if it were a ing electronic communication. of its physical form, storage media or con-paper record. A reporter’s public records request for ditions of use.” Minn. Stat. § 13.02, subd. e-mail in March 2009 revealed that Gov. 7. All government data is subject to the actMaine Deval Patrick’s aides guided a state senator “regardless of its physical form.” Thus, data The definition of “public records” in the into a new position at a supposedly inde- in electronic formats is covered by the act.Freedom of Access Act has for some time pendent state authority, with a $175,000included electronic messages. The FOAA salary and a job description tailored so as Mississippiincludes within the definition of “public not to require the technical expertise she Electronic messages are not specificallyrecords” any “mechanical or electronic data lacked. The reporter received e-mail cor- addressed by the Mississippi Public Re-compilation from which information can respondence contradicting the officials’ cords Act. However, it is generally acceptedbe obtained, directly or after translation public statements insisting the senator’s that such messages fall within the definitioninto a form susceptible of visual or aural hiring was not related to her political sup- of public record contained in Miss. Codecomprehension.” 1 M.R.S.A. §  402(3). port. Also in 2009, a Massachusetts resi- Ann. § 26-61-3(b) (public records includeAdditionally, “any document created or dent filed a public records request seeking “books, records, papers … and any otherstored on a State Government computer printed copies of electronic communica- documentary materials, regardless of physi-must be made available” under the law. tion between Worcester city officials after cal form or characteristics …”).It is well settled in Maine that electronic he saw city councilors text-messaging each In terms of retention, the Mississippicommunications, such as e-mail, are public other during an open meeting. The city Department of Archives and History ad-records. informed him that his request was overly vises that electronic messages and records Records retention schedules, including broad. A council committee later said are subject to the same retention guidelinesthose for electronic messages, are approved that although councilors could keep their as those applicable to paper records.by the State Archivist and the Archives devices on during meetings, they shouldAdvisory Board, per the Archives and not communicate electronically during a MissouriRecords Management Law in Title 5. E- meeting with five or more colleagues at The Sunshine Law applies to all publicmail messages that qualify as official state the same time, leaving the broader texting records, “whether written or electronicallyrecords must be categorized according question somewhat open. stored.” Mo.Rev.Stat. § 610.010(6). Anyto their content, just like paper records, According to the Massachusetts Public member of a public governmental bodyso they can be deleted or retained to the Records Division, the state has not yet who transmits any message relating to8 Access to Electronic Communications Spring 2009
  • 9. public business must concurrently transmit Neb.Rev.Stat §84-1201, et seq. computer technology.”the message either to the member’s public In a case that arose since the new lawoffice computer or to the custodian of re- Nevada took effect, a court held e-mail messagescords in the same format, to formalize it as The content of e-mail or other elec- of “individual legislators” were not subjecta public record (subject to the enumerated tronic records determines whether they to release and that the law only applied toexceptions). Mo.Rev.Stat. § 610.026.1(1). are subject to release as public records. public bodies and agencies. KingCast.net v. In a lawsuit over access to e-mail mes- Personal records are not subject to release. Martha McLeod, et al., No. 08-E-192.sages from the office of Gov. Matt Blunt, Transitory messages, those that do not set Retention was also addressed in thethe parties settled, agreeing that the re- policy, establish guidelines or procedures, update to the law. It states: “Governmentalcords were subject to the Sunshine Law and document agency business, certify a trans- records created or maintained in electronicrequired to be released unless exemptions action, or become a receipt, are considered form shall remain accessible for the sameapplied. non-records and may be deleted when no retention or archival periods as their paper Electronic records must be retained in longer administratively useful. counterparts.” RSA 91-A:4,III-a.the same way as all other records. For e-mail messages that are public records, the appropriate records retention New JerseyMontana schedule must be applied. These guidelines The Open Public Records Act includes Information “in electronic format or were set forth in the “Policy on Defining in its definition of a “government record”other nonprint media” is open to the pub- Information Transmitted via E-mail as a any information “stored or maintainedlic, subject to the same restrictions that ap- Public Record.” electronically.” N.J.S.A. 47:1A-1.1.ply to information in printed form. Mont. Two recent cases required e-mail to E-mail exchanged between Gov. JonCode Ann. § 2-6-110. While there has not be released under the open records law. Corzine and his former union-leaderbeen litigation over whether electronic Gov. Jim Gibbons was ordered to turn girlfriend is protected by the executiverecords are to be legally treated the same as over e-mail messages requested by the privilege, and the New Jersey Supremeall other public records, they are generally Reno Gazette-Journal. Of the 104 messages Court upheld the order protecting it fromregarded as such. Barr v. Great Falls Intern. requested, the judge determined 98 fell release. Wilson v. Brown, 404 N.J. Super.Airport Authority, 326 Mont. 93, 107 P.3d within the transitory or privileged catego- 557 (2009).471 (2005) (although the specific issue of ries that did not require release. For the purpose of retention and backwhether an electronic record constitutes a Also, e-mail of the trustees of the Clark up, electronic messages are treated in thepublic record was not raised, the court held County School Board was held to be a same way as other records. The New Jerseythat an arrest record from Alaska contained public record. Gray v. Clark County School Administrative Code (N.J.A.C. 15:3 et seq.)in national computer database was public District, No. 53391, Nev. Sup. Ct. sets forth retention schedules for variouscriminal justice information). records, including electronic records. The However, the server for the e-mail of New Hampshire retention schedules vary based on the con-officers and employees of state government New Hampshire updated its records tents of the records.is not maintained in a manner that permits law in 2008 to include as “governmentaleasy access. The only way to access these e- records” any written communication or New Mexicomail messages is to request the agency that other information, “whether in paper, The definition of public records broadlymaintains the state server (the Department electronic, or other physical form, received includes “all documents, papers, letters,of Administration) to retrieve computer by a quorum or majority of a public body in books, maps, tapes, photographs, record-storage tapes and essentially recreate the furtherance of its official function, whether ings and other materials, regardless ofinformation. The department charges for at a meeting or outside a meeting of the physical form or characteristics, that areits time and effort in recreating these e-mail body.” RSA 91-A:1-a, III. used, created, received, maintained or heldmessages, and it is often exorbitant. This Litigation prompted the legislative by or on behalf of any public body and re-issue will likely lead to litigation. update. In Hawkins v. New Hampshire late to public business, whether or not the Electronic messages are legally treated Department of Health and Human Services, records are required by law to be created orin the same way as other records in terms 147 N.H. 376 (2001), a party requested in- maintained.” § 14-2-6(E), NMSA 1978. E-of retention and back-up. formation contained in databases of a state mail is subject to disclosure under the law. agency. Because the requested informationNebraska did not take the form of an existing record, New York The Nebraska public records law has the court ruled it was not a public record The definition of an agency record cov-for many years included electronic records and denied the plaintiff’s request. ered by the Freedom of Information Lawin its definition of public records. Neb. However, the court concluded its deci- is sufficiently broad to include electronicRev.Stat. § 84-712.01(1) (Reissue 2008) sion by stating: “The issues in this case messages maintained by government agen-(“Public records shall include all records of foreshadow the serious problems that cies. FOIL § 86(4). Whether a particulardocuments regardless of physical form. . . . requests for public records will engender electronic communication is exempt fromData which is a public record in its original in the future as a result of computer tech- disclosure under FOIL will be determinedform shall remain a public record when nology. Unless the legislature addresses by its content, rather than by the naturemaintained in computer files.”). the nature of computerized information of the medium or format in which it is The Nebraska Records Management and the extent to which the public will be maintained by the agency. Matter of DataAct requires each agency to submit a provided access to stored data, we will be Tree, LLC v. Romaine, 9 N.Y.3d 454, 849records retention and disposition sched- called upon to establish accessibility on a N.Y.S.2d 489 (2007) (“FOIL does notule to the secretary of state; the agency case-by-case basis. It is our hope that the differentiate between records stored inmay then dispose of record only in ac- legislature will promptly examine the Right paper form or those stored in electroniccordance with such approved schedule. to Know Law in the context of advancing format”); Babigian v. Evans, 104 Misc.2dSpring 2009 Access to Electronic Communications 9
  • 10. 140, 427 N.Y.S.2d 688 (Sup. Ct., N.Y. Co. is made for access to a record on a backup a record upon receipt and would thereby be1980) (“information is increasingly being or for a copy of an electronically stored subject to disclosure under the Oklahomastored in computers and access to such data record, the public entity may charge a Open Records Act. Also, an e-mail from anshould not be restricted merely because it reasonable fee for providing the copies, employee of the legislature would becomeis not in printed form”), aff’d, 97 A.D.2d including costs attributable to the use of a record upon being received by a third-992 (1st Dep’t 1983). information technology resources. NDCC party public body or official, and so would Two FOIL amendments made in 2008 44-04-18. Electronic records are legally be subject to the Oklahoma Open Records— which seemingly apply to all types of treated the same way as other records in Act. 2008 OK AG 19.electronic communications — require an terms of retention and back-up. Additionally, records of governmentagency to take public access considerations business belong to the public even if theyinto account when it contracts with outside Ohio are created, received or stored on an of-vendors and designs electronic information E-mail communications are treated in ficial’s private smart phone or laptop,systems. New language added to FOIL in the same fashion as other paper records according to an Oklahoma AG opinion.the form of § 87(5)(b) prohibits an agency under the open records law. Ohio Rev. 2009 OK AG 12.from entering into or renewing a contact Code § 149.011(A) and § 149.43(A); State Electronic messages are treated thefor the creation or maintenance of records ex rel. Wilson-Simmons v. Lake County Sher- same as paper documents in terms of reten-where it would impair the public’s right of iff’s Department, 82 Ohio St. 3d 37, 693 tion and back-up. However, an agency mayinspection or copying. N.E.2d 789 (1998). This is true regardless convert the e-mail to a hard copy when it Section 89(8) of FOIL, which pro- of whether the e-mail is on a government does not have the capability to maintainvides that any person who, with intent to or private account. State ex rel. Glasgow v. records in the original format, providedprevent public inspection of an agency Jones, 119 Ohio St.3d 391 (2008) citing that other records exist from which an in-record, “willfully conceals or destroys any Wilson-Simmons, 82 Ohio St. 3d 37. terested party could ascertain all significantsuch record shall be guilty of a violation.” In State ex rel. Glasgow v. Jones, 119 Ohio material contained in the electronic record.Although distinct from a specific retention St.3d 391 (2008), the court held a requester 2001 OK AG 46.policy governing electronic information was not entitled to access to text messages Public officials and employees are pro-files, this provision would seem to apply sent by a state representative because they hibited from altering or destroying publicwith full force and effect to any situation did “not document work-related matters” records on their private communicationwhere agency personnel have intentionally and thus were not public records. The devices unless allowed to do under thefailed to preserve or have purged electronic requester, however, did receive access to state Records Management Act. 2009 OKcommunications to avoid disclosure under e-mail messages. AG 12.FOIL. In State ex rel. Toledo Blade Co. v. Seneca County Board of Commissioners, 120 Ohio OregonNorth Carolina St.3d 372 (2008) the Ohio Supreme Court Electronic messages and files are treated The state’s definition of public records required a county board to retrieve e-mail the same as paper files and documentsspecifically includes “electronic data- messages that were deleted from its sys- under Oregon’s Public Records law. ORSprocessing records” and says the “physical tem in violation of its records retention 192.410(4)(a). Whether the message is aform or characteristics” of a document have policy. The board had to pay for the cost public record or exempt from disclosureno bearing on whether it is a public record. of retrieval. depends on its content. A lawsuit was pending in May 2009 E-mail messages are subject to the same Electronic communications are alsoinvolving access to e-mail messages of retention schedules as paper records based treated the same as paper records in termsformer Gov. Mike Easley. A whistleblower on their content. of retention. State guidelines requirehad disclosed that the governor’s press of- routine back-up and periodic copying orfice discouraged the use of e-mail because Oklahoma migration to new hardware or software sys-of the paper trail it left and directed that All documents regardless of physical tems to appropriately retain such records.when e-mail on a controversial subject was form are records available for public in- Attorney General’s Manual, I, C, (1).unavoidable, agency public affairs direc- spection under the open records law. 51tors were to “double delete” e-mails from Okla. Stat. Supp. 2005 § 24A.3.1. E-mail Pennsylvaniacomputer systems. Easley established the in either electronic or paper form is subject A record includes any information orE-Mail Records Review Panel that issued to the Act. 2001 Okla. Op. Att’y Gen. 7. document “regardless of physical form orrecommendations on retention, most of A recent attorney general opinion ad- characteristics” and includes informationwhich were signed on the governor’s last dressed various issues related to electronic “stored or maintained electronically.” Soday in office. communications. Communications among long as an e-mail satisfies the Open Re- There is no legal distinction in the law legislators, whether written or electronic, cords Law’s definition, the law requireson access and retention between electronic are not subject to disclosure because, except access.and paper documents. for financial records, the legislature and However, local governments are in- legislators are not a “public body” covered terpreting the changes to the law thatNorth Dakota under the Oklahoma Open Records Act. went into effect in 2009 as applying only The open records laws apply per the However, an e-mail created by a third- to e-mail messages that are stored onstatute to all forms of records, including party public body or official and sent to a government computer servers. Some lo-electronic messages. NDCC 44-04-18. legislator would be a record and thus sub- cal governments do not maintain e-mail Access to electronically stored records is ject to the Oklahoma Open Records Act. messages for any length of time on servers,free if the records are recoverable without An e-mail sent by a legislator to a third- or only have forwarding services that sendthe use of a computer backup. If a request party public body or official would become e-mail automatically to an official’s private10 Access to Electronic Communications Spring 2009
  • 11. account. In such cases, those e-mail mes- panel advised the city on how to respond to public disclosure. Op. Tex. Att’y Gen.sages have not been accessible in response to state workplace safety violations and how No. JC-3828 (2001). There is no firm stateto open records requests. to hand-pick firefighters to speak publicly policy for retention of e-mail; for example, about their experiences in order to fight open-government advocates urged reformRhode Island criticism of the department’s handling of when it was discovered that Gov. Rick The state’s Open Records Law treats the fire. Perry’s aides were instructed to routinelyelectronic mail messages as a public record, A “meeting” under the open meetings delete office e-mail after seven days.except for messages sent by or to elected laws includes the convening of a quorum In April 2009 a Texas appellate courtofficials with or relating to their constitu- of the constituent membership of a public reversed a trial court’s decision that a Dallasents or to elected officials in their official body, whether in person or by means of mayor’s Blackberry e-mail messages werecapacities. R.I. Gen. Laws § 38-2-2(4)(i). electronic equipment, to discuss or act public information, leaving the question Three 2006 Attorney General Opinions upon a matter over which the public body open for further judicial interpretation.discuss the possibility that e-mail exchanges has supervision, control, or jurisdiction. The trial court had held that because thebetween and among the members of a S.C. Code Ann. § 30-4-20(d). No chance messages were made in connection with thepublic body may, under certain conditions, meeting, social meeting or electronic com- transaction of official business, they wereconstitute a violation of the Open Meetings munication may be used in circumvention public under the Texas Public InformationAct. To be unlawful that way, the e-mail of the spirit of the requirements. Act, as information “collected, assembled,messages must involve a majority of the or maintained under a law or ordinance ormembers of the public body and discussion South Dakota in connection with the transaction of of-or action relating to a matter over which A 2009 revision to the state’s open ficial business by . . . or for a governmentalthat public body has supervision, control, records law shifted the legal standard for body.” The city argued against releasejurisdiction or advisory power. R.I. Gen. all state records — including electronic re- because the messages were not “collected,Laws §§ 42-46-2 and 42-46-5; In re Loparto cords — to presume they are public records assembled, or maintained by or for thev. Lincoln Town Council, 2006 WL 4563862 unless an exception to the law would allow city, and the city [did] not own or have the(R.I. Attorney General Opinion, May 19, them to remain private. Electronic records right of access to them” since they were2006; In re McFadden v. Exeter/West Green- are not specifically addressed in the new sent from the Blackberry device and notwich Regional School Committee, 2006 WL law; however, the state records manage- through the office server. City of Dallas v.4573866 (R.I. Attorney General Opinion, ment program statutes pertain to records Dallas Morning News, LP, 2009 WL 944395June 6, 2006); In re Cerullo v. West Warwick in any physical form and make them state (Tex. App 2009).Town Council, 2006 WL 4573895 (R.I. At- property. S.D.C.L. § 1-27-9 and S.D.C.L. A case pending in the Fifth Circuit arosetorney General Opinion, Oct. 27, 2006). § 1-27-10. out of e-mail messages exchanged between Electronic messages are legally treated city councilors in Alpine, Tex., discussingin the same way as other records in terms Tennessee the time and content of a council meetingof retention and back-up by statute un- The state in 2008 made its most sweep- in violation of the Texas Open Meetingsder R.I. Gen. Laws § 38-3-1 et seq. and ing reforms to the state’s Open Records Act. The U.S. Court of Appeals heldregulation under R.I. Administrative Code Law in the past 20 years. With regard to that the First Amendment protected the35-000-015. electronic messages, the portion of the law councilors’ rights to communicate with that revises Tennessee Code Annotated one another and ordered that the openSouth Carolina §10-7-503 (a)(1) provides that public re- meetings law be subject to a heightened Public records, as defined by the South cords include “all documents . . . regardless standard of constitutional review or elseCarolina Freedom of Information Act and of physical form or characteristics made or it would be considered invalid. Rangra v.the Public Records Act include “all . . . doc- received pursuant to law or ordinance or in Brown, No. 06-51587 (Apr. 27, 2009). Theumentary materials regardless of physical connection with the transaction of official parties have asked the full appeals court toform or characteristics prepared, owned, business by any governmental agency.” rehear the case. That request was pendingused, in the possession of, or retained by a The new law also includes the creation as of publication.public body.” Therefore, records created of a state ombudsman, called the Officeand stored electronically must be managed of Open Records Counsel. Along with an Utahaccording to the law. S.C. Code Ann. § 30- advisory committee, the office is charged The Government Records and Manage-4-20(c); S.C. Code Ann. § 30-1-10. The with issuing guidance on electronic records ment Act defines “public record” to includePublic Records Act does not differentiate issues. “electronic data,” “documents” and “otherbetween types of media; records created or According to state statutes, paper and documentary material regardless of physi-formatted electronically are covered. The electronic copies should be treated the cal form or characteristics.” Utah CodeSouth Carolina Department of Archives same with regard to retention. Ann. § 63G-2-103(22)(a). Public records,and History develops and issues records however, do not include personal com-retention schedules to authorize the legal Texas munications sent from or to a governmentdisposition of public records. The Public Information Act covers officer or employee who is acting in his or   In 2007, e-mail messages released virtually all information possessed by her private capacity.pursuant to an open government request governmental bodies; “the form in which All governmental entities (except thoseseeking information about a deadly fire a governmental body stores information that are permitted to maintain their ownrevealed a close relationship between the does not affect its availability.” Tex. Att’y retention schedules) “shall file with thecity of Charleston and a supposedly inde- Gen. ORD-461 (1987). Electronic mail State Records Committee a proposedpendent investigatory panel. The e-mail generated or received by a public entity schedule for the retention and dispositionmessages showed that a member of the may be but is not automatically subject of each type of material that is defined asSpring 2009 Access to Electronic Communications 11
  • 12. a record under this chapter.” Utah Code elected officials constitutes a “meeting” A case pending before the West VirginiaAnn. § 63G-2-604(1)(a). Although section subject to the FOIA provisions. In evaluat- Supreme Court will determine whether e-63G-2-604 does not distinguish between ing the issue, the court specifically noted mail exchanged between a supreme courtpaper and electronic records, it also does that “there is no question that e-mails fall justice and a party in a case before the courtnot preclude government entities from within the definition of public records are public records under the FOIA. The ju-submitting proposed retention schedules under [FOIA].” Beck v. Shelton, 593 S.E.2d diciary is subject to West Virginia’s FOIA.that make such distinctions; indeed, the law 195, 199 (Va. 2004). Electronic messages are legally treatedappears to expect it in requiring proposed Retention of electronic records is gov- in the same way as other records in termsschedules for each type of material that erned by the Virginia Public Records Act, of retention and back-up. However, therequalifies as a record. § 63G-2-604(1)(a). Va. Code § 42.1-76, et seq. (the “VPRA”). have been no cases in which the meaning Whether an electronic communication of the retention section of West VirginiaVermont falls within the VPRA’s retention mandates law has been judicially defined, so it is not E-mail and other electronic messages depends on the content of the communica- certain that a “record” would include elec-are included in the definition of “public tion, not its form. Va. Code § 42.1-77. Ac- tronic messages. W.V. Code § 5A-8-3. Ifrecord.” 1 V.S.A. § 317(b) (Cum. Supp. cordingly, the VPRA pertains to all types electronic messages are included within the2008) (a public record is “any written or re- of electronic communications so long as definition of “record”, then they are subjectcorded information, regardless of physical the information contained within “docu- to the same preservation requirements asform or characteristics, which is produced ments a transaction or activity by or with paper documents. W.V. Code §  5A-8-4,or acquired in the course of public agency any public officer, agency or employee of and W.V. Code § 5A-8-17.business”). an agency.” In 2008, the Vermont Superior Courts Wisconsinissued decisions in two cases under the Washington E-mail messages can be obtained underAccess to Public Records Act involving Although practices vary by agency, re- the open records law just as any othere-mail messages. quests for electronic communications are record would be. McCullough Plumbing, Personal e-mail communications be- generally not controversial in Washington Inc. v. McFarland, 288 Wis. 2d 657 (2005).tween the Burlington city attorney and two and are treated the same as any other re- They are subject to the same exemptionswomen working for the city with whom he cords request. and privileges, such as the attorney-clientwas allegedly romantically involved were In June 2007, the attorney general ad- privilege.exempt from disclosure as “personal docu- opted Model Rules for Electronic Records. E-mail messages are also subject toments” under 1 V.S.A. § 317(c)(7). Gannett The rules are non-binding “best practices” the state’s records retention policies, butVermont Publ’g, Inc. v. City of Burlington, for state and local agencies to follow in ful- a failure to comply with the policies can-No. 628-9-07 Wncv at 1-3 (Wash. County filling requests for electronic documents. not be “attacked” under the open recordsSuper. Ct. Oct. 6, 2008). Among other things, the rules recognize law. State ex rel. Gehl and DSG Evergreen E-mail messages sent between school that requests for electronic public records F.L.P., v. Connors, et al., 306 Wis.2d 247board members regarding a vote to move should be addressed in the same manner as (Wis. 2007).sixth graders to a new school were exempt requests for print records. The Wisconsin Supreme Court wasunder the deliberative process and inter- Washington’s Public Records Act makes considering in 2009 whether “employees’departmental communications privileges no distinction between electronic public personal e-mails are public records and, ifunder the law. 1 V.S.A. § 317(c)(4) and (17). records and traditional paper records. One they are, whether public policy reasons out-Bethel v. Bennington Sch. Dist., No. 403-10- recent case held that an e-mail sent by a weigh the public’s interest in disclosure.”07 (Ben. County Super. Ct. Jul. 24, 2008). private citizen to the home computer of The case, Schill v. Wis. Rapids School Dist., Each public agency must establish and a public official was a public record — at No. 2008AP000967-AC, involves schoolmaintain a records management program least, once it became the subject of public employees who sought an order from theto ensure the records are available to the comments at a city council meeting. O’Neill court determining whether the e-mailpublic. 3 V.S.A. § 218 (Cum. Supp. 2008). v. City of Shoreline, 145 Wash .App. 913, 187 messages are public. The state’s Court ofFurther, a custodian of public records may P.3d 822 (2008). Appeals has asked the Supreme Court tonot destroy or dispose of a public record State law requires agencies to develop consider the question, because there is nowithout approval from the state archives appropriate record retention policies, opinion yet addressing the issue and it is ofdivision. The General Record Schedule including for electronic records. RCW significant importance to the public.issued by the Vermont State Archives and 40.14.020. An electronic or e-mail versionRecords Administration requires that sub- of a public record must be retained for the Wyomingstantive correspondence be maintained for same period of time as if it were in paper “Private communications” between aat least three years. However, the Vermont form. Agency practices vary widely and legislator and a constituent, including e-legislature apparently has only a 90-day compliance with these guidelines is not mail, are not public records. Communica-retention policy for all e-mail on its server. universal, particularly at the local level. tions, including e-mail messages, between a legislature and legislative staff, as wellVirginia West Virginia as contractors and consultants, are also “Public records” subject to the Freedom E-mail messages are treated the same as confidential.of Information Act include electronic any other records under the West Virginia The law does not distinguish the treat-records. The Virginia Supreme Court Freedom of Information Act; that is, if they ment of electronic messages from any otherconsidered the circumstances in which are public records, they should generally public record and should be retained andan exchange of e-mail messages between be released. disposed of as set forth in W.S. 9-2-411.12 Access to Electronic Communications Spring 2009