 National Association of Counties * Washington, D.C. Vol. 31, No. 9 * May 10, 1999 Previous story | Table of Contents | Next story Legal opinions vary on use of e-mail By Mary Ann Barton
Using e-mail has changed the way everyone communicates. Although its advantages are apparent, its use can also land public officials in hot water. The Freedom of Information Center at the Missouri School of Journalism in Columbia, Mo. has been tracking legal opinions concerning the use of e-mail by public officials. Here’s what the center found. The North Dakota Attorney General ruled that the state Board of Higher Education had held illegal secret meetings. The ruling came after the Associated Press revealed that board members used e-mail to discuss and take straw votes on whether to fire the president of the University of North Dakota. Under the order by Attorney General Heidi Heitkamp, the board held a public meeting to explain what members had discussed in secret. The state’s broad open records law says most records are available for public inspection. In Garland, Texas, a violation occurred when a city council member sent an e-mail message to colleagues’ home computers over a proposal involving a church of which he was a director. The city attorney forced him to retract the message. Lawmakers in Palo Alto, Calif. received a stern warning from their city attorney after they discussed a land-use measure on e-mail. "E-mail was new [to us] and we were not conscious" about avoiding open-meeting violations, a council member told The Wall Street Journal. In Spokane County, Wash., a reporter asked to see all the e-mail a county commissioner had received in the past four months. The request yielded e-mail messages between two commissioners discussing public business such as employee pay raises, the number of workers to hire and public leases, according to a recent article in the New York Times. After that happened, "I found it changed the way we do business here," Commissioner John Roskelley said. "We eliminate all e-mails, delete them instantly from our mailbox, which in one respect cleans up our hard drive, but on the other side of the coin, we do not have a history of what goes on. I just chose to eliminate them rather than have someone else go through my e-mails."
The opinion was issued after someone asked whether the state Freedom of Information Act and the Code of Virginia prohibit an elected member of the local governing body from sending e-mail to three or more other members of the governing body. All official actions of the governing body must, however, take place at a meeting where members are physically present, the attorney general said.
As for using e-mail in the context of public meetings, the counsel noted that "if the members of the legislature were to communicate exclusively through the use of electronic mail, the mere fact that they are present together for a floor session or committee meeting at the appointed time in a room to which the public has access will likely not be upheld as being a session or meeting that is open to the public since the public would effectively be excluded from the substance of the session or meeting. The counsel concluded that for floor sessions and committee meetings, as long as the substantive business of the house or committee is carried on in a manner that is accessible to the public, communications between legislators through electronic mail on the laptop computers would not violate any open meeting requirements."
The attorney general found that the Open Meetings Act does not apply to e-mail communications among members of a public body, unless a quorum of a public body is engaged in a simultaneous exchange of e-mail on a matter of public business. Curran also found that an e-mail message sent between government officials surely falls within the definition of public records under the Public Information Act. Even if the message was never printed, the version of the e-mail message retained in the computer’s storage would also be a public record, he said. In Florida, Attorney General Robert Butterworth issued a similar opinion in mid-May. The Sarasota County property appraiser had asked for an opinion on whether e-mail messages made or received by the employees of the appraiser’s office or to other governmental agencies were public records under the law, and whether, and for how long and in what form such messages must be saved. |