Opening the Mail

When is an e-mail like a phone call--and when is it a public record or a secret meeting?
by | June 2005

They had no idea that their e-mails would land them in court. When the mayor, the vice mayor and three members-elect of the Fredericksburg, Virginia, city council e-mailed each other about a library board appointment, it seemed innocuous--like picking up the phone and having a quick chat. Instead, the officials were charged with holding secret meetings to avoid public scrutiny and discussing city business without the participation of the whole council and the public.

And the charge stuck--at first. A trial court ruled that they had indeed held an e-mail meeting. Eventually, however, the Virginia Supreme Court overturned that ruling. It held that the e-mail "conversation" was more like an exchange of letters or faxes since the discussions were not in real time and the e-mails took anywhere from four hours to two days to get to recipients.

The Fredericksburg five were off the hook. But the court did not specify how rapid an e-mail exchange must be to constitute a meeting. It left open whether a chat room or instant messaging discussion could be viewed as a meeting, too. "I'm sure it's driving government officials nuts," says Frosty Landon, executive director of the Virginia Coalition for Open Government, a nonprofit advocacy group. "The law is not settled in this area, and the technology changes every day."

There has always been tension between government and the media, as well as the public, over the issue of open records and open meetings, as well as over requests for data under the Freedom of Information Act. The electronic age is only adding to this unease. Few state laws have kept up with fast-changing technology, and even where there are laws in place, too few officials understand or live by them. E-mail, which has grown to be a common and easy means of communication, is one of the more difficult technologies for officials to grasp when it comes to defining what a public record is.


In some states, an e-mail dealing with public business is a record like any other and needs to be saved and, under the rules that govern FOIA, provided on request. That means that officials have to get over the notion that e-mail "is this ethereal thing that comes in, you press delete and it goes back to the place it came from," says Maria J.K. Everett, executive director of the Virginia Freedom of Information Advisory Council, a government agency.

Some states make that adjustment easier than others. They have defined e-mail and other electronic communications clearly and set standards on what must be retained and made available to the public. According to a recent study by the Marion Brechner Center Citizen Access Project at the University of Florida, Colorado sits at the top of the overall rankings, along with Montana and California, on legal definitions of e-mail. For instance, Colorado law defines any kind of gathering of public officials, including electronic, as a meeting. Agencies must have written policies on whether e-mail is monitored or not. Within those policies, there must be a statement that employee e- mail may be a public record and subject to public inspection.

In other states, progress on electronic definitions and laws is not as far along. According to Bill Chamberlin, director of the Citizen Access Project, Arizona, Nevada, North Dakota, Ohio, Pennsylvania, South Dakota and Wyoming are among those whose laws, in general, "haven't addressed the computer age." Even in Utah, Texas and Pennsylvania, states that have made great gains in the use of technology in government, state laws don't tackle whether e-mail is a record. And yet, officials there, and most everywhere else, rely heavily on e-mail, electronic records and the Internet to do government business.


Having laws on the books is only the beginning. There is a tendency for officials not to take the laws seriously. Sometimes, it is simply a lack of knowledge about the intricacies of state public records laws. A growing cadre of public-access counselors has appeared on the scene to deal with this issue. Organized into advisory councils, they are charged with interpreting open records for government agencies, citizens and the media. Eight states now have such councils. "Government is tasked to comply with the law but not required to be trained in it," says Everett, the executive director of Virginia's FOI council. "How are they supposed to know what to do?"

The Virginia council trains officials, publishes information and issues advisory opinions. The most important service the council offers through its outreach program for officials is to dispel misperceptions and replace them with an understanding of what the laws are and how they work. For instance, an official wanted to know how to handle a citizen request for a transcript of a 911 tape of a child calling in to report that his mother had fallen. Did the tape have to be transcribed or would handing over a copy of the tape be sufficient? Officials can get opinions on such matters from their attorney general's office, but those offices are often too busy to give answers quickly, and some of the legal questions that revolve around FOIA requests have time limits.

New York State also has a committee that writes advisory opinions sought by government agencies, the public and newspapers. Bob Freeman, the executive director, roams the state doing 80 or so talks a year to groups that have questions or don't know the law as well as they should. On visits to groups of town clerks, for instance, he is frequently asked about storage media for electronic information and whether e-mail is the equivalent of a phone call. Freeman tells them it should be treated as if the communication were made on paper.


To make sure electronic public records are available to those who request them, the records have to be stored and filed so they can be easily retrieved. Otherwise, when there is a request for records, a system might have to be turned upside down. That was the case in Fredericksburg when the offending e-mails had to be produced. A city council clerk had to go through "hundreds, maybe thousands of e-mails that were on one server or another," says Landon.

The way states are cataloging or searching e-mail is "very haphazard right now," says Fred Cate, a law professor at Indiana University. When FOIA requests come in asking for e-mails, if there is no systematic means for filing them--or e-mails are deleted--the search may end up at the state's back-up system, where e-mails are stored on a hard drive and can't be centrally searched. That process can take many days and staff hours to complete. "States are worried about the cost of complying," Cate says. "There's a lot of chatter about this, but I don't know of any state that's solved it. E-mail is by far the biggest area where this issue is raised."

Virginia's Everett suggests three options on how to store records so that when a FOIA request comes in they are easy to access. One is designating a keeper of e-mails, such as a clerk of the legislature or an agency. The clerk can then create a filing system and organize the e-mails logically. Or, individuals can decide to create discrete files on their own computers, such as a "city business 2004" file that makes it easy to find official e-mails without having someone rifle through their computer and sort personal e-mails from business e-mails.

The third alternative is to resort to the low-tech approach. "We all know how to take care of paper, how to file it, how to store it," Everett says. "We print it and delete the e-mail."

Once e-records are found, information that is exempt from public disclosure has to be separated out. In paper days, a black magic marker could strike out certain passages. That's not possible with electronic material, but there are computer systems and software that make it possible to electronically withhold confidential information. Under Mississippi law, not only must government agencies separate exempt material from non-exempt material, but any time a government agency buys or modifies its computer systems or software, it must make sure the system is able to handle the confidentiality piece electronically.

Mississippi's redaction law is considered top-notch by the Citizen Access Project. Meanwhile, 14 states have no laws or court decisions at all on the issue of removing confidential information from electronically stored records requested by the public.

Public officials who don't comply with public-records laws don't face much in the way of reprimand or punishment. The Fredericksburg dust-up was unusual. And even in Virginia, where it is a misdemeanor for public officials not to turn records--including e-mails--over to a successor, no one is waiting to nab them if they don't. But at least there's a council advising them how to do the right thing.


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