January 23, 2008
E-mail
use creates problems for public officials
By Fran Hardy
Sparta — The use of e-mail by public officials may be less of a
convenience and more of a curse.
E-mail communication between members of bodies that discuss public
business is subject to the “Sunshine Law,” or the Open Public
Meetings Act and the Open Public
Records Act. E-mail
communication between members of bodies that discuss public business is subject
to the "Sunshine Law," or the Open Public Meeting Act (OPMA), and the
Open Public Records Act (OPRA). Thus, an efficient means of instant contact
among public bodies can become a tedious and time consuming process of
archiving, and/or printing, redacting of information deemed legally
confidential, and filing to preserve these records as public documents.
The first Sunshine Law was enacted in 1975, prior to internet communication.
Since e-mail is an important means of communication between public officials,
new parameters and guidelines for their use evolved.
The NJ School Boards Association
provides guidance for its members on the acts. Regarding public meetings, the
association’s advice is clear: “Whenever a quorum is discussing or acting on
public business, the OPMA applies. Therefore, it does not matter if your board
calls such a meeting a retreat or a training session. If the gathering is open
to a quorum of the board and you intend to discuss public business, the act
applies and the public must be provided with notice and the right to attend.”
The use of e-mail to conduct public business is a muddier issue.
In an article, “Risky Business,” published in the NJSBA’s “School Leader,”
Donna Kaye writes, “Today there is a broad understanding and acceptance of how
certain e-mail communication may be analogous to public meetings, and therefore
would contradict the spirit of the Sunshine Law, namely the public’s right to
be present at all meetings of public bodies, and to witness in full detail all
phases of the deliberation, policy formulation, and decision making of public
bodies.”
This means if a public body engages in e-mail communication on
matters of public business with a quorum of its members, it violates the spirit
of the Sunshine Law because the public has been denied access to this virtual
“meeting.” Because there is no New Jersey case law to guide decisions on this
issue, the NJSBA recommends “board members not engage in e-mail discussions or
communications with a quorum of its membership.”
Other states, such as Florida and Arizona have attorney general
rulings on the implications of OPMA and OPRA on e-mail. The Florida
attorney general concluded if one board member e-mails a report to be
discussed at an upcoming meeting to another board member, no violation has
occurred. If the same board member forwards the report to other members and
invites comments, it has. The NJSBA says although this case is not binding in
New Jersey because of subtle differences in state laws, it is at least
“instructive. Therefore, board members should be aware that once members begin
to engage in two-way communication, or a string of communication involving
additional board members, each step brings the board closer to the possibility
that the board’s action could be challenged as a violation of the Sunshine
Law.”
NJSBA spokesperson Mike Yaples said even when board members exclude
members, it can be a violation. He said, “New Jersey still hasn’t seen much
case law on this issue. However, it is clear that e-mails between public
officials cannot be used to circumvent the Sunshine Law.”
According to Kaye’s article, the Arizona Attorney General
“provides excellent guidance on the parameters that open meeting law
requirements place on e-mail communication to and from members of a public
body.” She suggests boards review the Arizona opinion when drafting their own
procedures for the use of e-mail.
Under OPRA, e-mails between members of a public body are public
records. Kaye says, “Therefore, such e-mails must be preserved according to a
records retention program and generally be made available for public
inspection.” The New Jersey Division of
Archives and Records Management has detailed information regarding this on
its Web site.
The NJDARM states, “Clearly, an e-mail message is a document or
item created or received by a public office. The deciding factor as to its
status as a record is if the e-mail serves to document the organization
functions, policies, decisions, procedures, operations or other activities
. . . All e-mail messages that meet the criteria of a government
record must be made available to the public upon request under the Open Public
Records Act.”
Retention schedules are provided by NJDARM
for e-mail messages. Some are considered “Intermediate Documents”: general
correspondence, internal correspondence, such as letters, memos, requests for
routine information, monthly and weekly reports, and documents advising of
various events, issues, and the status of on-going projects. These e-mail
should be retained for a period of time according to schedules provided by the
State Records Committee. Those considered “Permanent Documents” include
executive correspondence, departmental policies and procedures, and minutes of
boards and commissions. These must be maintained permanently. NJDARM says they
will be subject to periodic review for transfer to state archives in accordance
with standards and protocols.
A Fair
Lawn resident submitted an OPRA request in 2005 for all borough-related
e-mails stored on the mayor’s personal computer. Officials tried to deny the
request, claiming that sorting through the e-mail was a “hardship.” The Government Records Council ruled Fair Lawn
had to comply with the request. The volume of e-mails generated by a public
body can be hard to categorize, manage, maintain and copy for the public.
Computer archiving systems are available, for as much as $10,000. Even these
don’t ensure all records are intact if tapes are recycled.
Sparta’s Board of Education currently has no process in place for
maintaining and preserving e-mails that do not go through the district’s
server, according to Assistant Superintendent Kathleen Monks. At the June 12,
2006 meeting, Board President Michael Schiavoni reported e-mail guidelines from
an NJSBA representative advising e-mail should be used for information only not
to make decisions, and they should be printed out and shared with the full
board. If this has been done, it could be a mammoth task. Superintendent Thomas
Morton says he has received 1,348 board-related e-mails since April 2007. Some
boards require all business e-mail to be forwarded to the Board Secretary for
cataloguing and archiving.