When a public official gets or sends an e-mail, is it more like a telephone conversation or a letter? Officials and journalists, armed with public records requests, are finding there are no easy answers.
Even in the handful of states where laws are clear that e-mail is a public record, the process of getting copies of government e-mails can be tough. In Colorado, which has a strong law identifying all government e-mail as public record, journalists report government attempts to charge thousands of dollars to pay an attorney to remove confidential information from e-mails as part of a public records law request.
What’s clear is that there are haphazard state laws and policies regarding e-mail. According to research by the Marion Brechner Citizen Access Project at the University of Florida, 45 of 51 laws in states and the District of Columbia don’t mention e-mail specifically in their public records laws. In 37 of those, the statutes don’t directly mention e-mail, but more general statutory language and court opinions may make it possible for the public to gain access to these records.
In another eight states, experts said laws without e-mail provisions may preclude most citizen access, the study found. If a state’s law does not deal directly with e-mail, it could harm the public’s right to know because officials often conduct official business via e-mail, may unwittingly conduct business that should be limited to public meetings or delete important e-mails without clear policies about archiving. Journalists and SPJ are finding a growing need to ask for clearer definitions and consistent policies.
And e-mail is only the beginning. There are many areas where laws need to be updated to address the advances of technology. At the Public Affairs Research Council of Louisiana, they have done a lot of thinking about this issue, and their suggestions deserve some attention because journalists are faced with these issues across the nation. The following suggestions come from the report “Louisiana’s Sunshine Laws: The Promise and Peril of New Technology” by Charlotte Bergeron, a research analyst with the council:
Amend state records laws to explicitly define e-mail and Web site information as public records.
Amend open records laws to allow citizens to request public records verbally or in writing transmitted by any means including regular mail, fax and e-mail.
Create clear guidelines about how state government should manage electronic records, specifically e-mail. State government should specifically address the retention of electronic records and provide a model for state and local public bodies in designing their own retention schedules.
Establish specific guidance on the use of electronic media in conducting official business, on access to e-mail messages and setting limits on personal use.
Establish clear rules regarding the management and retention of e-mail identifying appropriate methods of storage and which messages to save and for how long.
Amend state open meetings laws to prohibit a public body from using technological devices to circumvent the law. Across the nation, anecdotal evidence suggests that public bodies may be using e-mail and instant messages to speak about public business.
Amend open meetings laws to require public bodies to issue meeting notices via e-mail to those who request the service.
Amend open meetings laws to require all public bodies to post meeting notices and minutes on their Web sites.
Prohibit public bodies from charging fees for access to information online.
Require public bodies to review data collection policies and allow only the collection of personal information necessary to conduct agency business.
Allow citizens to conveniently – and at no charge – review and correct erroneous personal information held by public bodies.
Amend the public records law to exempt from the definition of public record the following personal information: Social Security numbers, driver’s license numbers, bank and credit card account numbers, electronic identification numbers and digital signatures. This should not exempt the entire record, but would require the filtering, or redaction, of confidential information before examination by a requester.
Allow public bodies, except legislative bodies, to meet through videoconferencing subject to the following safeguards:
A majority of the members of the public body must be physically present in the same location. Members at a remote location may not qualify to form a quorum.
Each remote location must be identified in the notice of the meeting and made accessible to the public. The notice should specify the location where a quorum will be physically present.
The public’s right to attend, hear and speak at the meeting subject to the rules and regulations of the public body must be accommodated. Such accommodations should include sufficient seating, recording by audio and visual recording devices, and a reasonable opportunity for public comment to the same extent as would be provided absent videoconferencing.
Documents being considered must be made available to the public at each site of the videoconference.
No more than one-third of the public body’s meetings in a calendar year may be held by videoconferencing.
Amend open meetings laws to prohibit public bodies from conducting meetings through teleconferencing.
A former reporter and editor, Joel Campbell is an assistant professor in the Brigham Young University Department of Communications.
