E-Mail’s Status as a Public Record and Interaction with Open Meeting Law
by Katie Blevins*
Edited by Professor Shannon Martin**
The advent of new technology such as the Internet has forced laws and regulations to work in new ways to integrate this communication format into the current legal structure governing public records and open meeting laws. Public records are records considered eligible for release to the public.1 The Freedom of Information Act, known as FOIA, is the federal law which sets broad standards for federal agencies to release records to the public.2 This White Paper will concentrate on state issues and solutions regarding e-mail, though many of the issues around e-mail and state government are valid federal concerns as well.
FOIA, signed into law in 1966 by President Lyndon B. Johnson, and the Privacy Act of 1974, signed into law during Richard Nixon’s presidency, both address only those records kept by government agencies. The 1996 amendment of FOIA addressed electronic records and officially set e-mail as a public record. Most states have their own laws governing access to public records. These laws vary widely from state to state when it comes to record availability.3 Louisiana, for example, allows citizens access to all public records except those specifically exempt by the state’s public record act.4 Public records in Louisiana are defined broadly as almost any kind of documentary material including electronic data such as e-mail.5 New Hampshire, on the other hand, has much lower government transparency because it does not offer a definition of a public record, though it does assert that citizens have the right to inspect these undefined public records during regular business hours.6 The Archives and Records Program (State Archives), under the Department of State, officially oversees state records when it comes to their management.7 Currently, all state records, regardless of their physical format, are required to be maintained for three years unless another retention schedule has been approved.
Open
meetings law is also facing greater challenges with increased email
use. The key issue here is whether e-mail communication between
public officials can constitute a meeting as defined by a state’s
open meeting law.8 Open meeting laws are designed to
give the public access to the inner workings of government by attending
open government meetings and much of the preparatory materials that
are part of those meetings. Open meetings, in and of themselves,
also act as a check on government officials who will be held accountable
for their actions in an open meeting setting.
Issues, Variation and E-mail
Since states have laws of varying levels of transparency or government openness with regards to public records in general, the way in which individual states treat e-mail as a public record varies as well. Some states, such as Massachusetts, do not address e-mail at all in their public record laws. Other states, like Colorado, specifically require agencies that operate or maintain an electronic mail system must adopt a policy regarding e-mail’s use as a public record.9 These variances are troublesome because they make it more difficult for citizens to know how to request e-mail correspondence as a public record, as well how a state agency or institution should store and grant access to e-mail as a public record. These kinds of ambiguities in the current state laws create administrative confusion and may encourage denials of requests by citizens who should lawfully have access to this kind of information.
There
are, of course, instances of government officials trying to bypass open
meeting requirements as well. In so-called chain communication,
for instance, the person in charge will serially have an individual
meeting with each person on the committee or in an agency, and reach
a consensus through these one-on-one conversations without ever actually
having to call a meeting that would otherwise be open to the public.
Officials sometimes use e-mail in this way to bypass open meeting requirements,
and one of the legal challenges has been how to define e-mail’s use
and limitations within the parameters of governmental transparency,
especially considering many states have yet to address e-mail within
their open meeting guidelines.
Costs and Problems When E-mail Is a Public Record
There are some drawbacks to e-mail designated as a public record. One of the basic consequences of maintaining e-mail as a public record is the sheer cost.10 Some of the discrepancy in the public records law leads to maintaining different amounts or levels of e-mail. According to some laws, every e-mail sent and received by an agency employee must be kept, even junk mail or personal e-mail that is not relevant to state business. Some laws only require that e-mail relevant to government business be kept. There is also some discrepancy as to how long e-mail needs to be saved. Some agencies and businesses keep e-mail for only a week or two -- even e-mail that is likely to be requested as a public record -- while others keep e-mail for years. There is overhead cost associated with maintaining the servers and files necessary to hold all of these messages, especially in the states where all e-mail of any content must be kept for a number of years.
Several laws restrict the types of information that can be publicly available, such as medical or financial records.11 When e-mail is considered a public record then businesses and agencies cannot communicate by e-mail for fear that those messages will be made public. Many hospitals, for instance, do not communicate patient information through e-mail. The Sarbanes-Oxley Act of 2002 mainly deals with financial reporting issues but many internet technology specialists have begun cautioning against using e-mail to discuss financial issues because of the Act. These two examples illustrate some of the complications that may come from having e-mail as a public record -- companies and agencies may discover it is more difficult to communicate about certain types of information when heavily relied upon mediums of communication like e-mail cannot be used for fear of leaking sensitive public information.
In
general, privacy is one of the greatest concerns with e-mail as a public
record. While some of the privacy concerns stem from the very
act of making a request for e-mail records, the lack of consistency
and clarity in public record law with regards to e-mail is where most
of the problems arise. Since the regulations are not uniform many
agencies have difficulty figuring out which e-mail to keep, how to store
it, and for how long. As a result, security, backup, and recovery
are all problems when e-mail must be maintained a public record.12
Fundamental Benefits of E-mail as a Public Record
There are some important reasons for e-mail to be considered a public record, though. Paper records, by their very nature, must be located in a physical place and therefore cannot be accessed by many people at different locations during the same time. Electronic records in general encourage transparency of government, which benefits the public.13 Since more people can access the records with the physical limitations gone, more citizens can be involved in the daily operations of the government.
Another general benefit for having public records available electronically is that it reduces file duplication.14 Many records, especially legal records, require that several hard copies to be kept for filing purposes. By moving to electronic storage this added burden of duplicate paper storage can be eliminated. Electronic records can also result in a reduction of errors.15 By the nature of electronic files, more people can view the records quickly because of their transportability within a system, make corrections and additions seamlessly, and move the completed records back into the data stream, which benefits all who are responsible for the maintenance of public records.
Another
benefit of e-mail as a public record is that it enhances a level of
transparency in the operations of government. Letters and other
written correspondence that used to be maintained as a form of public
record still exists, but e-mail has frequently replaced handwritten
correspondence to the point that ignoring e-mail’s uses in the daily
affairs of government agencies would be a gross injustice.16
Problems Yet to Solve
Aside from the debate over whether or not e-mail should exist as a public record, in states where e-mail is already considered a matter of public record, there are many problems in the implementation of these laws. A 2003 statistic, for example, suggested that only 40% of state agencies actually keep the e-mails they are required to maintain by their local laws.17 The two main problems in implementing e-mail as a public record are 1) confusion about when electronic records become public records and 2) when e-mail sent to or from a public official is considered private and may fall under nondisclosure exemptions.18 Most of the violations of public record laws by public institutions in these instances seem to be unintentional. In many cases the language of the statutes which address e-mail retention are unclear or do not provide actual technological guidance to specific agencies and public entities.
In
2003, for example, the Wisconsin Association of School Boards asked
for e-mail to be exempted from open records law and claimed that existing
open records law was not clear enough on how long e-mail must be kept.19
Discrepancies even exist within states themselves. In 2001 the
Texas Attorney General stated that e-mail constituted public records;
five months later Arlington city officials filed a lawsuit counterclaiming
through a statement that since all city business was conducted at public
meetings, e-mail between public officials should not constitute a public
record.20
Solutions and Conclusions
There are certain steps that could be taken to increase compliance with current public record law about e-mail. 1) require state archives to post specific guidelines on how to manage electronic records, especially with regards to retention schedules for e-mail, 2) emphasize the training of public employees on retention policies so that they do not unwittingly violate public record law, 3) establish official guidelines on the use of electronic media for conducting official business. For example, whether or not public officials should communicate personal information over an official e-mail account, 4) clearly define which messages’ content should be retained and for how long -- all e-mails, personal, business related only, etc.21 Addressing these issues would go a long way in ensuring better compliance with existing public record law and help move towards better electronic management laws.
There have been few discussions dealing with e-mail’s role in open meeting law. Many of these laws do not specifically address e-mail and the possibility of it being used to circumvent quorum requirements. Some states have taken a very proactive stance on this issue in an attempt to maintain government transparency. In 2003, for example, the Connecticut Freedom of Information Commission proposed a restriction on the use of e-mail on the grounds that this form of messaging by committee members and agencies could constitute an illegal meeting that excluded the public from open government proceedings.22 In Florida, though, the State Attorney General said that the use of an electronic bulletin board by members of a water management agency violated open meeting law but, in contrast, an absent school board member could actually vote by e-mail if a quorum was absent.23
As
with chain communicating and videoconferencing, another technological
innovation which caused similar situations several years ago when it
was first introduced, e-mail provides an opportunity to have a meeting
without having the public present.24 The pitfalls of
e-mail’s use in this context are obvious; even if the letter of the
law does not specifically prohibit using e-mail as a way to communicate
about matters that would otherwise be discussed in a meeting open to
the public, the spirit of open meeting law and government transparency
are violated. The recommendation, then, with regard to email in
the open meeting context is to simply amend state open meeting laws
to keep e-mails from becoming a tool to circumvent quorums.25
State Overview
Below are two separate sections analyzing the state laws regarding e-mail’s status as a public record, and if e-mail has been addressed in state open meetings law. More detailed summaries of the statutes can be found at the Marion Brechner Citizen Access Project web site, but this paper provides a comprehensive overview. When pertinent, Attorney General Opinions and relevant case law are provided as well.26
E-Mail as a Public Record
Alabama
Cases: In Birmingham News Co. v. Peevy, decided in 1993, access to electronic records was established in the state, though e-mail was not specifically addressed.
Statute: Alabama currently has no laws addressing the status of e-mail as a public record.
The Statute in Terms of Openness: Mostly closed.
Alaska
Cases: In Gwich’in Steering Committee v. State of Alaska, which was decided in 2000, the Supreme Court of Alaska affirmed the withholding of a variety of documents, including e-mail because those requesting the records could not establish that the need for the records outweighed the state’s interest in not releasing them. The Alaska Supreme Court decided this because the documents in question contained deliberations and fell under the deliberative process exemption to Alaska’s Public Records Act.
Statute: While Alaskan law does not directly address e-mail’s status as a public record, "regardless of format or physical characteristics," it does suggest that e-mail would be covered under this statute. See Alaska Stat. § 40.25.220 (3) (2003).
The Alaska Criminal Law statute, which also does not directly address e-mail, also indicates that a record that contains the transaction of official business is public regardless of the physical form of that record. See Alaska Stat. § 11.81.900(b)(53) (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Arizona
Cases: In Star Publishing Co. v. Prima County Attorney’s Office, decided in 1994, the Arizona Court of Appeals ruled that e-mail should be presumed open for public inspection. A government official must give facts as to why an e-mail should not be made public under this presumption. For example, if there were highly personal e-mail that did not deal with public business, an official might be able to keep that e-mail from being released as a public record.
Statute: Arizona public records law mandates that all government officials maintain proper records of activities completed for official business, or activities supported by public funds. E-mail is assumed to be included in this assessment, though e-mail is not specifically mentioned. See Ariz. Rev. Stat. § 39-121.01 (B) (2003).
The Statute in Terms of Openness: Somewhat closed.
Arkansas
Attorney General’s Opinions: While Arkansas statute has defined a public record to include “electronic or computer-based information” this has been clarified even further to include e-mail in two Attorney General Opinions, making electronically stored e-mail a public record. See Ark. Op. Att’y Gen. No. 2001-305 and Ark. Op. Att’y Gen. Nos. 2000-096, 99-018.
Statute: The Arkansas Freedom of Information Act, 1967, defines public records as including "electronic or computer-based information,” of which e-mail is assumed to be included. See Ark. Code Ann. § 25-19-103 (5)(A) (2002).
The Statute in Terms of
Openness: Somewhat
open.
California
Cases: In San Diego Reader v. Superior Court, decided in 2002, e-mail was ruled to be a government record. This issue arose from people trying to access e-mail being sent to and from the mayor’s former press secretary. The court ruled that this e-mail was not exempt from disclosure because the government’s interest in nondisclosure was less than the public’s interest in disclosure. Further, anyone corresponding with a government official should have a diminished expectation of privacy with regards to that e-mail’s content.
Statute: California public records law defines public records as “any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics …" See Cal. Gov't Code § 6252(e) (2003).
This is further defined to include electronic mail, regardless of the manner in which the record has been stored. See Cal. Gov't Code § 6252(f) (2003).
The Statute in Terms of
Openness: Mostly
open.
Colorado
Statute: Colorado explicitly says that any government body that has an electronic mail system must have a written policy clearly stating the guidelines on monitoring this system. The statute also says that the written policy must contain an acknowledgment that any electronic mail written by an employee of the state can be considered a public record and would therefore be open to public inspection. See Colo. Rev. Stat. § 24-72-204.5 (2002).
E-mail is defined by public records law as any electronic message transmitted between at least two computers. The law does not differentiate between what form the e-mail is kept in (a hard copy versus an electronic copy), or if it was viewed upon transmission. See Colo. Rev. Stat. § 24-72-202(1.2) (2002).
The Statute in Terms of
Openness: Mostly
open.
Connecticut
Statute: The Connecticut Freedom of Information Act defines a public record as “any recorded data or information relating to the conduct of the public's business prepared, owned, used, received or retained by a public agency,” regardless of the method employed to record this information. Therefore, while e-mail is not specifically addressed by Connecticut public records law, electronic mail is still covered. See Conn. Gen. Stat. § 1-200(5) (2003).
The Statute in Terms of Openness: Neither more open, nor more closed.
Other: Connecticut
has an Electronic Voicemail Management and Retention Guide published
for State and Municipal Government employees which is issues by the
Office of the Public Records Administrator and State Archives.
This guide says that e-mail messages sent or received while conducting
public business become public records.
Delaware
Statute: The Delaware Freedom of Information Act does not specifically address e-mail. It does define public records as information related to conducting public business, regardless of physical form. Therefore, e-mail is covered by current statute. See Del. Code Ann. Tit. 29 § 10002 (d#041; (2002).
The Statute in Terms of Openness: Somewhat open.
District of Columbia
Statute: The District of Columbia Freedom of Information Act does not directly address e-mail’s status as a public record but does define public records as information “used in the possession of, or retained by a public body,” regardless of form, including electronic records. See D.C. Code § 2-502(18) (2003).
The Statute in Terms of
Openness: Somewhat
open.
Florida
Cases: In Siegle v. Barry, decided in 1982, “information stores on a computer is as much a public record as a written page in a book […] All of the information in the computer, not merely that which a particular program accesses, should be available for examination and copying.”
This was amended somewhat in State v. City of Clearwater, decided in 2003. Private e-mail of city employees were said to be analogous to personal letters and therefore not public records. E-mail headers were also ruled to not be part of a public record.
Attorney General’s Opinions: In this opinion, e-mail is established to be treated no differently than any other public record. This means that any e-mail that includes official business sent or received by an agency employee becomes a public record. See Op. Att’y Gen. Fla. 96-34 (1996).
The basis of e-mail being treated a public record has been affirmed as recently as 2007, when the Attorney General restated that e-mail received in connection with official business are public records and subject to disclosure unless they fall into specific exempt categories. See Op. Att’y Gen. Fla. 2007-14 (2007).
Statute: Florida public records law does not directly address e-mail’s status as a public record. Current statute does provide that any record used for conducting official agency business is a public record regardless of physical form. See Fla. Stat. ch. 119.011 (1) (2003).
The Statute in Terms of
Openness: Somewhat
open.
Georgia:
Statute: Georgia public records law includes computer-stored or computer generated information used in conducting the official business of a pubic office or agency. See Ga. Code Ann. § 50-18-70 (a) (2002).
The Statute in Terms of
Openness: Somewhat
open.
Hawaii
Statute: The Hawaii Uniform Information Practices Act defines governmental public records as information held by an agency regardless of physical form (including electronic records). E-mail is not directly addressed. See HRS § 92F-3 (2003).
The Statute in Terms of
Openness: Somewhat
open.
Idaho
Statute: While Idaho public records law does not specifically mention e-mail, electronic records are included in the state definition of a public record, which encompasses writing related to the conducting of public business retained by an agency regardless of physical form or characteristics. Writing, in this sense, includes every means of recording information. See Idaho Code § 9-337 (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Illinois
Statute: The Illinois Freedom of Information Act does not address e-mail’s status with regards to public records. The statute merely states that information “regardless of physical form or characteristics” is considered a public record if it is under the control of any public body and is any sort of record, report, or documentary material. See 5 ILCS 140/2 (c) (2003).
The Statute in Terms of
Openness: Somewhat
open.
Indiana
Statute: The Indiana Access to Public Records law makes no mention of e-mail specifically in the statute. Furthermore, any public records stored on the computer or an analogous system cannot be made available without first removing any non-disclosable information. See Burns Ind. Code Ann. § 5-14-3-6 (b) (2003).
The Statute in Terms of Openness: Neither more open, nor more closed.
Other: In
Ind. Admin. R. 9(G)(1)(h), “personal notes and e-mail” are excluded
from public access. Specifically, the Indiana Supreme Court, in
commenting on Ind. Admin. R. 9(G) noted that limiting public
access “includes, without limitation, mail and e-mail addresses.”
Iowa
Statute: Iowa does not currently have a statute addressing e-mail’s status as a public record.
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Kansas
Attorney General’s Opinion: In a 2002 opinion, the Attorney General said that e-mail can be a public record, but that e-mail between city commissioners that is not handled through city resources is not protected. See Op. Att’y Gen. Kan. 2002-1 (2002).
Statute: While the Kansas Open Records Act does not directly address e-mail, it does provide that “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency” is a public record. See Kan.Stat.Ann. § 45-217(f)(1) (2002).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Kentucky
Statute: Kentucky Open Records Law does not directly address e-mail. It provides that anyone may copy open electronic records in either their electronic format, or as a hard copy. See KY. Rev. Stat. § 61.874 (2)&040;a) (2002).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Louisiana
Statute: Louisiana public records law does not directly address e-mail. It provides that information regardless of its form can be a public record as long as it relates to any business conducted under the authority of the state constitution or laws. See La. R.S. 44:1 (2)(a) (2003).
Furthermore, any exemption or exception to public records law must be numerated within public records law or the Constitution of Louisiana. See La. R.S. 44:4.1 A (2003).
The Statute in Terms of
Openness: Somewhat
open.
Maine
Statute: The Main Freedom of Access law does not directly address e-mail, but defines public records to include any electronic data compilation from which information can be obtained that an agency or public official of the state has, and that has been received or prepared for with regards to the transaction of public or governmental business. Certain records, like medical and juvenile records, are excluded. See Me. Rev. Stat. 1, § 402 (3) (2003). [See "Subjects open/ closed" in this database for the treatment of the individual subjects.]
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Maryland
Attorney General’s Opinion: According to the 1996 opinion, agency e-mail is considered a public record (both printed and electronically stored versions of e-mail). See 81 Op. Att’y Gen. 117 (1996).
Statute: The Maryland Access to Public Records Law does not specifically address e-mail, but public records are explicitly not limited by physical form and include any original or copy or materials that are made or received by the state in connection to public business. See Md. Code Ann., [State Government] § 10-611 (g) (2002).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Massachusetts
Statute: Massachusetts public records law does not mention e-mail. Public records are listed to include such forms as any written or printed book or paper, or any photograph, microphotograph, map, or plan. See Mass. Ann. Laws ch. 66, § 3 (2003).
The law goes on to state that records can include information in any physical form though as long as they are made or received by any employee of any agency, executive office, department, or authority of the commonwealth. See Mass. Ann. Laws ch. 4 § 7, cl.26 (2003).
The Statute in Terms of
Openness: Mostly
closed.
Michigan
Statute: The Michigan Freedom of Information Act does not directly address e-mail’s status as a public record. Public records are defined to be writings used or possessed by a public body in the use of public business. See Mich. Comp. Laws § 15.232 (e) (2003).
E-mail is addressed in the statute defining “written requests” for information and included in the list of ways requests can be made. See Mich. Comp. Laws § 15.232 (i) (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Mississippi
Statute: The Mississippi Public Records Act of 1983 does not directly address e-mail. Its definition does include all materials used or possessed in the performance or function of any public body, regardless of physical form. See Miss. Code Ann. § 25-61-3 (b) (2004).
The Statute in Terms of
Openness: Somewhat
open.
Missouri
Statute: The Missouri Public Records Act does not explicitly mention e-mail. It does define “public record” to include both written and electronic information prepared or presented to a public governmental body, either by a consultant or other paid professional service, paid for by public funds. See Mo. Rev. Stat. § 610.010 (6) (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Minnesota
Statute: The Minnesota Government Data Practices Act does not directly address e-mail but defines “government data” to mean all data created, received, or maintained, by any public body regardless of its physical form or storage medium. See Minn. Stat. § 13.02, subd 7 (2002).
The Statute in Terms of
Openness: Somewhat
open.
Montana
Cases: In Barr v. Great Falls International Airport Authority, decided in 2005, an arrest record from Alaska and found in a national computer database was made public. This case did not address e-mail specifically, but gives precedence in the state of Montana to computer records being made public.
Statute: Montana public records law specifically deals with e-mail’s status as a public record. As long as the e-mail does not fall under constitutional protection from disclosure, such as burial site records, then the e-mail may qualify as a public record. See Mont. Code Ann., § 2-6-101 (2003); Mont. Code Ann., § 22-1-1103 (2003); Mont. Code Ann., § 22-3-807 (2003).
The Statute in Terms of
Openness: Mostly
open.
Nebraska
Attorney General’s Opinion: One opinion says that e-mail, faxes, and other electronic communications involving elected officials and government staff are public records unless there is another specific statute that allows for their confidentiality. See Neb. Op, Att’y Gen. 04007.
Statute: Nebraska public records law does not directly address e-mail. Public records are defined as not being limited by physical form though. See R.R.S. Neb. § 84-712.01 (1) (2002).
The law does go on to say that data that is considered a public record in its original form shall remain a public record when maintained as a computer file. See R.R.S. Neb. § 84-712.01 (1) (2002).
The Statute in Terms of
Openness: Somewhat
open.
Nevada
Statute: Nevada public records law does not address e-mail in the definition of public record or in any other public record provision. See Nev. Rev. Stat. Ann. § 239.005 (2003).
The Statute in Terms of
Openness: Mostly
closed.
New Hampshire
Statute: New Hampshire public records law makes no mention of e-mail and its status as a public record. It is also not mentioned in any other public record provision. See RSA 91-A:1-a (2002).
The Statute in Terms of
Openness: Mostly
closed.
New Jersey
Cases: In Meyers v. Borough of Fairlawn, decided in 2005, the personal e-mail in the Mayor’s account fell within the definition of “government records” and was ordered released to the public.
Statute: While New Jersey public records law does not directly address e-mail in its definition of governmental records, it does define government records as documentations made in the “course of official business.” With regards to exempt information, information received by a member of the legislature from a constituent or information about a constituent held by a member of the legislature, including e-mail, is not considered a public record. See N.J. Stat. § 47:1A-1.1 (2003).
The Statute in Terms of
Openness: Somewhat
closed.
New Mexico
Statute: The New Mexico Inspection of Public Records Act does not specifically address e-mail but defines public records as documents and materials, regardless of physical form, that are used, received, or maintained by a public body and relate to public business, regardless of whether the law requires these records to be created or maintained. See N.M. Stat. Ann. § 14-2-6 (E) (2002).
The Statute in Terms of Openness: Somewhat open.
New York
Statute: The New York Freedom of Information Law does not directly address e-mail’s status as a public record. The law defines record to include information kept in any form whatsoever. See NY CLS Pub O § 86(4) (2003).
The Statute in Terms of
Openness: Somewhat
open.
North Carolina
Statute: North Carolina’s Public Record Law does not directly address e-mail but defines “public record” to include materials, such as electronic data processing records, regardless of physical form made or received in connection to public business by any agency of the state. See N.C. Gen. Stat. § 132-1 (a) (2003).
The Statute in Terms of
Openness: Somewhat
open.
North Dakota
Statute: North Dakota public records law does not directly deal with e-mail but defines record to include any information, regardless of physical form or characteristic by which the information is stored, recorded, or reproduced, that is in the custody of a public entity and contains information related to public business. See N.D. Cent. Code, § 44-04-17.1 (15) (2003).
The Statute in Terms of
Openness: Somewhat
open.
Ohio
Cases: In State ex rel. Wilson-Simmons v. Lake County Sheriff’s Department, decided in 1998, the court ruled that public officials’ e-mail could be a public record. The court’s reasoning was that, “sometimes, public office e-mail can document the organization, functions, policies, decisions, procedures, operations, or other activities of the public office.”
In State ex. Rel. the Cincinnati Enquirer v. David Krings, Turner Construction, etc., decided two years later in 2000, a reporter doing a story asked for public records about the construction of a city stadium, including e-mail. The court further clarified e-mail’s role as a public record by saying that only e-mail used to conduct public business, in this case the county commissioners’, could constitute records.
Statute:Ohio public records law does not directly address e-mail’s status. The law defines record to mean any piece of information, regardless of physical form, that is created or received by any public office of the state that documents the organization, functions, policies, decisions, procedures, operations, or other activities of the office. See Ohio Rev. Code Ann. § 149.011 (G) (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Oklahoma
Attorney General’s Opinions: According to this opinion, if the e-mail involves official business, spending public funds, or how public property is dealt with, then mail received by an Oklahoma public body or a political subdivision constitutes a record subject to the state’s Sunshine laws. See 2001 Okla. Op. Att’y Gen. 46.
Statute: The Oklahoma Open records Act does not directly address e-mail. Records are defined to include all documents and data files, such as those made on a computer or electronic device, regardless of physical form, that are created or received by public officials in connection with conducting public business. See 51 Okl. St. § 24A.3 (1) (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Statute: Oregon public records law does not directly address e-mail’s status. Record is defined to mean any writing that contains information concerning the conducting of public business prepared, owned, or retained by a public body, regardless of physical form. See ORS § 192.410 (4) (2001).
The Statute in Terms of
Openness: Somewhat
open.
Pennsylvania
Statute: Pennsylvania public records law does not address e-mail at all in its statutes. See 65 Penn. Stat. § 66.1 (2002).
The Statute in Terms of
Openness: Mostly
closed.
Rhode Island
Statute: Rhode Island explicitly includes e-mail in its definition of public records. Electronic mail messages of elected officials either by or to their constituents, or in the officials’ official capacity are exempted from public record requests though. See R.I. Gen. Laws § 38-2-2(4) (i) (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
South Carolina
Statute: The South Carolina Freedom of Information Act does not deal specifically with e-mail. Public records are considered to be all documentary materials, regardless of physical form, that are created by or in the possession of a public body. See S.C. Code Ann. § 30-4-20 (c) (2002).
The Statute in Terms of
Openness: Somewhat
open.
South Dakota
Statute: The South Dakota public records law does not address e-mail in its definition of public records. See S.D. Codified Laws § 1-27-21 (2002).
The Statute in Terms of
Openness: Mostly
closed.
Tennessee
Statute: Tennessee public records law demands that the state and any affiliated agencies with e-mail systems must have an e-mail policy in place as of 2000. The policy must include a statement making clear that correspondence of employees by electronic mail may be considered a public record. See Tenn. Code Ann. § 10-7-512 (2003).
The Statute in Terms of
Openness: Somewhat
open.
Texas
Attorney General’s Opinions: In 2001 a situation arose in Bedford, Texas, where the City received a request for all e-mail to and from the Mayor, and all from all city employees on a certain date. The City argued that the e-mail was not a record of public information and therefore did not fall under the Public Information Act.
The Attorney General issued an opinion saying that while some electronic mail may be subject to public disclosure, e-mail is not automatically a public record. In this particular case, the Attorney General found the e-mail in question to be of a strictly personal nature and, since it was unconnected to official business, was not subject to disclosure. See Op. Tex. Att’y Gen. No. JC-3828 (2001).
In another Attorney General Opinion issued two years later, e-mail that is sent from a government computer even if it is through a personal account can be subject to disclosure. See Op. Tex. Att’y Gen. No. GA-4274 (2003).
Statute: Texas public records law does not address e-mail. See Tex. Gov't Code § 552.001 et seq&046; (2002).
The Statute in Terms of
Openness: Mostly
closed.
Utah
Statute: Utah public records law does not address e-mail. See Utah Code Ann. § 63-2-301 (2003).
The Statute in Terms of
Openness: Mostly
closed.
Vermont
Statute: Vermont public records law does not explicitly address e-mail. Public records are defined to include any machine readable materials or written or recorded materials, regardless of physical form that are procured or acquired in completing agency business. See 1 V.S.A. § 317 (b) (2003).
The Statute in Terms of
Openness: Somewhat
open.
Virginia
Statute: The Virginia Freedom of Information Act does not directly address e-mail. Public records are defined to include all recordings, regardless of physical form or characteristics, prepared or owned by a public body, officers, employees or agents while conducting public business. See Va. Code Ann. § 2.2-3701 (2003).
The Statute in Terms of
Openness: Somewhat
open.
Washington
Cases: In Bonamy v. City of Seattle, decided in 1998, the issue of whether or not e-mail constituted a request for public record arose. This issue was not decided directly by the court because the plaintiff did not process a request that had a “reasonable description enabling the government employee to locate the requested records.”
Two years later in Tiberino v. Spokane County, Office of the Prosecuting Attorney, the Washington Court of Appeals ruled that while e-mail is a public record, purely personal e-mails have no legitimate public interest and are therefore exempt from disclosure.
Statute: Washington public records law does not directly address e-mail. Public record is defined to include "any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics." See Rev. Code Wash. § 42.17.020 (36) (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
West Virginia
Statute:The West Virginia Freedom of Information Law does not directly address e-mail. Public record is defined to be any documentary material regardless of physical form or characteristic that relates to conducting public business and is prepared, owned or retained by a public body. See W. Va. Code § 29B-1-2 (2003).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
Wisconsin
Statute: Wisconsin public record law defines "record" to include any material on which information is recorded or preserved, regardless of physical form or characteristics that is kept by a state of local office. See Wis. Stat. § 19&046;32 (2002).
The Statute in Terms of
Openness: Somewhat
open.
Wyoming
Statute: Wyoming public records law does not directly address e-mail. Unless specified otherwise, a record includes the original and copies of a document regardless of physical form or characteristics that has been made by any state or agency that is received in the transaction of public business. See Wyo. Stat. § 16-4-201(a)(v) (2002). (v) (2001).
The Statute in Terms of
Openness: Neither
more open, nor more closed.
E-Mail and Open Meetings
Alabama
Statute: Alabama statutes dealing with open meetings do not address e-mail. See Code of Ala. § 13A-14-2 (2003).
The Statute in Terms of Openness: Somewhat closed.
Alaska
Cases: In Re 2001 Redistricting Cases, decided in 2002, the Supreme Court of Alaska had at issue whether e-mail exchanges by housing district officials violated Open Meeting law but because of case and controversy requirements, the issue was made moot.
Statute: Alaska open meetings law does not address e-mail communications.
The Statute in Terms of Openness: Somewhat closed.
Arizona
Statute: While Arizona open meetings law does not directly address e-mail, but it does define meetings as a gathering done through physical presence or technological devices where a public body deliberates as a quorum. See Ariz. Rev. Stat. 38-431(4) (2003).
The Statute in Terms of Openness: Somewhat open.
Arkansas
Attorney General’s Opinions: According to one opinion, e-mail exchanges do not violate open meeting law since e-mail is analogous to written correspondence. See Ark. Op. Att’y Gen. Nos. 2000-096, 99-018. A video or real time conference, though, is analogous to a telephone conference call, and is only permissible under open meeting law if the public is allowed to monitor the electronic exchange. See Ark. Op. Att’y Gen. No. 2000-096.
Statute: The language of the Arkansas Freedom of Information Act does not indicate how e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
California
Statute: California open meetings law does not directly address e-mail. The law does prohibit, unless otherwise authorized, any use of direct communication, personal intermediaries, or technological devices used by members of a legislative body. See Cal. Gov. Code § 11120; Cal. Gov't Code § 54952.2(a); Cal. Gov't Code § 54952.2(b) (2003).
The Statute in Terms of Openness: Somewhat open.
Colorado
Statute: Colorado open meetings law explains that meetings, any kind of gathering convened to discuss public business, must be open regardless of being conducted in person, by telephone, electronically, or by other means of communication. See Colo. Rev. Stat. § 24-6-402(b) (2002).
The Statute in Terms of Openness: Mostly open.
Connecticut
Statute: The Connecticut Freedom of Information Act does not directly address e-mail. The law explains that a meeting may occur in person, or with electronic equipment, to discuss matters a public agency supervises or controls. See Conn. Gen. Stat. § 1-200(2) (2003).
The Statute in Terms of Openness: Somewhat open.
Delaware
Attorney General’s Opinions: In this opinion, the Attorney General said that e-mail exchanged between members of a public body concerning public business is a meeting and subject to FOIA requirements. See Del. Op. Att’y Gen., No. 03-ib11 (May 19, 2003).
Statute: The Delaware Freedom of Information Act does not indicate that e-mail communications falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
District of Columbia
Statute: District of Columbia statute does not indicate that e-mail communications falls within open meetings law.
The Statute in Terms of
Openness: Somewhat
closed.
Florida
Attorney General’s Opinion: If the e-mail is used for public business, then it falls under the state’s Sunshine Laws. Purely factual communications lacking any commentary or responses though do not apply though. See Op. Att’y Gen. 2001-20 (2001).
Statute: Florida statute does not indicate that e-mail falls within the open meetings law.
The Statute in Terms of
Openness: Somewhat
closed.
Georgia
Statute: Georgia statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Hawaii
Statute: Hawaii statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Idaho
Statute: Idaho statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Illinois
Statute: Illinois statute does not indicate that e-mail communication falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Indiana
Statute: Indiana’s Open Door Law does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Iowa
Statute: Iowa open meetings law does not directly address e-mail. The law defines a meeting as “a gathering in person or by electronic means” that is within the scope of a governmental body’s policy-making duty. See Iowa Code § 21.2(2) (2003).
The Statute in Terms of Openness: Somewhat open.
Kansas
Attorney General’s Opinions: The Attorney General has said that e-mail by itself is not considered an “interactive communication” and therefore, presumably, cannot constitute a meeting unless it involves some sort of simultaneous communication by multiple members of a public body. See Op. Att’y Gen. 95-13(1995).
Statute: Kansas open meetings law does not directly address e-mail. The law does define a meeting as "any gathering, assembly, telephone call or any other means of interactive communication" with the necessary quorum to discuss official business. See Kan. Stat. Ann. § 75-4317a (2002).
The Statute in Terms of Openness: Somewhat open.
Kentucky
Statute: Kentucky statute does not directly address e-mail’s status in open meetings.
The Statute in Terms of Openness: Somewhat closed.
Louisiana
Attorney General’s Opinions: This opinion does not directly address e-mail, rather it says that telephone polls of members for any public body may not be used to circumvent open meeting law, but the same rationale could be applied. See Op. Att’y Gen 93-137.
Statute: Louisiana statute does not indicate that e-mail falls within the open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Maine
Statute: The Maine Freedom of Access statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Maryland
Attorney General’s Opinions: This opinion comes to the conclusion that the Open Meetings Act does not include e-mail within its definitions. Members of a public body may use e-mail to communicate and discuss public matters, unless a simultaneous exchange of a full quorum is going on, in which case the Attorney General relates e-mail to teleconferencing, which would fall under the Act. See 81 Op. Att’y Gen. 117 (1996).
Statute: The Maryland statute does not indicate that e-mail falls within the open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Massachusetts
Statute: Massachusetts statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Michigan
Statute: Michigan Open Meetings Act does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Minnesota
Statute: Minnesota Open Meeting Law does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Mississippi
Statute: Mississippi statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Missouri
Statute: Missouri’s Governmental Bodies and Records Law does not directly address e-mail. The law defines public a meeting as the gathering of any governmental body where public business is discussed in person or by means of a communication device. See Rev. Stat. MO. § 610.010(5) (2003).
The Statute in Terms of Openness: Somewhat open.
Montana
Statute: Montana open meetings law does not directly mention e-mail communication. The law defines a meeting as the convening or quorum of a public agency or association, either in person or by means of electronic equipment. See Mont. Code Ann. § 2-3-202 (2002).
The Statute in Terms of Openness: Somewhat open.
Nebraska
Attorney General’s Opinions: This opinion states that telephone conference calls, e-mails, faxes, and other electronic mediums should not be used to circumvent public meeting law. See Neb. Op, Att’y Gen. 04007.
Statute: Nebraska statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Nevada
Cases: In Del Papa v. Board of Regents, decided in 1998, the state attorney general filed suite against a university board of regents for violating open meetings law. This case does not specifically address e-mail, only telephone calls and faxes, but the reasoning of the court that “electronic communication… must not be used to circumvent the spirit or letter” of open meetings law, could apply to e-mail.
Statute: Nevada statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
New Hampshire
Statute: New Hampshire statute does not indicate that e-mail falls within open meetings law. See RSA 91-A:1-a (2002).
The Statute in Terms of Openness: Somewhat closed.
New Jersey
Statute: New Jersey Open Public Meetings Act does not directly address e-mail. It does define an open meeting to be any gathering, either conducted in person or by means of communication equipment, which is attended by or is open to all members of a public body to discuss public business. See N.J. Stat. § 10:4-8 (2003).
The Statute in Terms of Openness: Neither more open, nor more closed.
New Mexico
Statute: The New Mexico Open Meetings Act does not indicate that e-mail is a part of open meetings law.
The Statute in Terms of Openness: Somewhat closed.
New York
Statute: New York statute does not indicate that e-mail falls within open meetings law. See NY CLS Pub O § 102 (2003).
The Statute in Terms of Openness: Somewhat closed.
North Carolina
Statute: The North Carolina open meetings law does not directly address e-mail. However, the law defines open meetings to include a gathering at any time or place, or by simultaneous communication by telephone or other electronic means, that the majority of a public body attends to conduct public business. See N.C. Gen. Stat. § 143-318.10(d) (2003).
The Statute in Terms of Openness: Somewhat open.
North Dakota
Statute: North Dakota statute does not indicate that e-mail falls within open meetings law. See N.D. Cent. Code, § 44-04-17.1(8) (2002).
The Statute in Terms of Openness: Somewhat closed.
Ohio
Statute: Ohio statute does not indicate that e-mail falls within open meetings law. See ORC Ann. 121.22 (Anderson 2002).
The Statute in Terms of
Openness: Somewhat
closed.
Oklahoma
Statute: The Oklahoma Open Meetings Act does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
Oregon
Statute: Oregon statute does not indicate that e-mail falls within open meetings law. See ORS § 192.610 (2001).
The Statute in Terms of Openness: Somewhat closed.
Pennsylvania
Statute: Pennsylvania statute does not indicate that e-mail falls within open meetings law. See 65 Pa.C.S. § 703 (2002).
The Statute in Terms of Openness: Somewhat closed.
Rhode Island
Statute: Rhode Island statute does not indicate that e-mail falls within open meetings law.
The Statute in Terms of Openness: Somewhat closed.
South Carolina
Statute: The South Carolina Freedom of Information Act does not indicate that e-mail falls within open meetings law. The law does define a meeting as a quorum of members of a public body, whether in person of by means of electronic communication, that is held to discuss public business. See S.C. Code Ann. § 30-4-20(d) (2002).
The Statute in Terms of Openness: Somewhat open.
South Dakota
Statute: South Dakota statute does not indicate that e-mail falls within open meetings law. See S.D. Codified Laws § 1-25-1 (2002).
The Statute in Terms of Openness: Somewhat closed.
Tennessee
Statute: The Tennessee Open Meetings Act does not directly address e-mail. It does indicate that chance meetings, informal or electronic, cannot be used to discuss or deliberate on public business or otherwise circumvent the spirit of open meetings law. See Tenn. Code Ann. § 8-44-102(c) (2002).
The Statute in Terms of Openness: Somewhat open.
Texas
Attorney General’s Opinions: While Texas case law has limited the definition of a meeting to an exchange of spoken words, an Attorney General’s opinion has stated that e-mail exchanges can constitute deliberation under the state’s open meeting law. See Op. Tex. Att’y Gen. JC-0307.
Statute: Texas statute does not indicate that e-mail falls within open meetings law. See Tex. Gov't Code § 551.001 (2002).
The Statute in Terms of Openness: Somewhat closed.
Utah
Statute: Utah statute does not indicate that e-mail falls within open meetings law. See Utah Code Ann. § 52-4-2 (2003).
The Statute in Terms of Openness: Somewhat closed.
Vermont
Statute: Vermont statute does not indicate that e-mail falls within open meetings law. See 1 V.S.A. § 310 (2003).
The Statute in Terms of Openness: Somewhat closed.
Virginia
Attorney General’s Opinions: Under this opinion, sending e-mails among members of a public body does not constitute a meeting. The opinion also states that a more simultaneous form of communication could constitute a meeting. See 1999 Op. Atty. Gen. Va. 12.
Cases: In Beck v. Shelton, decided in 2003, the Fredericksburg Circuit Court ruled that City council members violated the Virginia Freedom of Information Act by using e-mail to reach a consensus about who to appoint to the local library board. The court qualified the ruling by saying that e-mail could be used to gather factual information though.
The Virginia Supreme Court, in 2004, ruled that while e-mail can constitute a meeting, in this particular case the time delay between e-mails analogized the situation to traditional written correspondence, and not a violation of open meeting law. The Supreme Court cited the Attorney General Opinion provided for background.
Statute: The Virginia Freedom of Information Act indicates that state public bodies can conduct official business through electronic means like e-mail, while local governments may not. State "public bodies" are limited to the legislative branch or any authority, board, bureau, commission, district or agency whose membership includes persons who reside or work more than 55 miles from the meeting location, See VA. Code Ann. § 2.2-3708(A)-(B) (2003).
The Statute in Terms of Openness: Neither more open, nor more closed.
Washington
Cases: In Wood v. Battle Ground School District, decided in 2001, the Washington State Appellate Court ruled that e-mail, in certain cases, does constitute an open meeting.
Statute: Washington statute does not indicate that e-mail falls within open meetings law. See Rev. Code Wash. (ARCW) § 42.30.020 (2003).
The Statute in Terms of Openness: Somewhat closed.
West Virginia
Statute: The West Virginia Open Governmental Proceedings law does not directly address e-mail. It does say that a meeting can be held by telephone conference or other electronic means. See W. VA. Code § 6-9A-2(4) (2003).
The Statute in Terms of Openness: Neither more open, nor more closed.
Wisconsin
Statute: Wisconsin statute does not indicate that e-mail falls within open meetings law. See WIS. Stat. § 19.82 (2002).
The Statute in Terms of Openness: Somewhat closed.
Wyoming
Statute: Wyoming statute does not indicate that e-mail falls within open meetings law. See Wyo. Stat. § 16-4-402 (2002).
The Statute in Terms of
Openness: Somewhat closed.