Over the past several years there has been a dramatic increase in the number of instances in which elected officials and their staff have been caught utilizing private email accounts to conduct government business or pass insider information through what they would have us believe to be a Freedom of Information exempt means. The names of many of them are familiar to us all and include former IRS Commissioner Douglas Shulman, former Alaska Governor Sarah Palin, former President George W. Bush, almost the entire Obama administration, the Environmental Protection Agency, former New York Mayor Michael Bloomberg and the list goes on. It has been argued unsuccessfully by many that government information contained in private emails is exempt from FOIA because the information is not in the control of the government entity.
The Virginia Freedom of Information Advisory Council(A state agency with the expertise to help resolve disputes over Freedom of Information issues) and the Code of Virginia do not support such contentions. The following is the Virginia Freedom of Information Advisory Council’s opinion on email communications. This opinion is basically the Commonwealth’s adopted legal opinion on the use, access and retention of email communications as pertains to the Commonwealth of Virginia Freedom of Information Act.
USE, ACCESS & RETENTION
The use of e-mail in the business place has become routine and is a preferred mode of communication. For state and local government officials and employees, the application of the Virginia Freedom of Information Act (FOIA) relating to access to records and the Virginia Public Records Act (the PRA) relating to the retention of records comes into play.
Government officials and employees frequently ask two key questions about the use of e-mail --"Can the public and media access my e-mail under FOIA?" and "Do I have to save my e-mail?"
This document will attempt to answer these questions and provide guidance about the use and management of e-mail by state and local government.
The nature of e-mail
E-mail generally refers to any communication that requires an electronic device for storage and/or transmission.1 E-mail is a medium for correspondence -- essentially, e-mail is the "envelope" for the communication. For purposes of FOIA & the PRA, e-mail provides a medium for communication, much like a telephone or the U.S. Mail provides a means of communication. The fact that a communication is sent via e-mail is not alone conclusive of whether that e-mail must be accessible to the public under FOIA or retained pursuant to the PRA; one must look at the text and substance of the communication to determine whether it is indeed a public record.
The Virginia Freedom of Information Act
FOIA addresses access to public records. Section 2.2-3701 of the Code of Virginia defines public records for purposes of FOIA to include "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business."
Clearly an e-mail would fall under this broad definition of a public record, because it applies to all writings and recordings…set down by…mechanical or electronic recording…however stored, regardless of physical form or characteristics. As noted above, e-mail is just the medium, or the envelope, used to convey the communication. Just as a letter sent via U.S. Mail from one public official to another concerning public business would be a public record under FOIA, so would that same communication sent via e-mail.
FOIA requires that unless subject to a statutory exemption, all public records must be open to inspection and copying. Therefore, an e-mail relating to public business would be accessible just like any other public record, and may be withheld from public disclosure only if a particular exemption applies to the content of the e-mail.
The Virginia Public Records Act
While FOIA governs access to records held by state and local government, the PRA governs how long a government entity must retain certain records. The PRA defines "public record" for purposes of records retention, and like FOIA, the definition is fairly broad and would include e-mail as a public record. Section 42.1-77 defines a public record to include recorded information that documents a transaction or activity by or with any public officer, agency or employee of the state government or its political subdivisions. Regardless of physical form or characteristic, the recorded information is a public record if it is produced, collected, received or retained in pursuance of law or in connection with the transaction of public business.
The PRA sets forth different retention schedules for different types of records. Several factors shape how long a record needs to be held. Many records are only kept for so long as business requires them to be kept, although if a record has historical significance or is created by an agency head or director, it may need to be kept longer. For example, certain records are required to be maintained permanently, such as records from standing committees of the General Assembly, annual reports of state agencies, and correspondence of agency directors. Other records need only be kept so long as they are administratively necessary, such as reminders of events like blood drives or fund raisers, courtesy copies of correspondence, or messages received from a listserv. Along the continuum, other records may be required to be retained for 30 days to ten years, depending on their content. After the retention time has expired for a particular document, then that record may be destroyed pursuant to the guidelines set forth by the Library of Virginia.2
In providing guidance for adhering to the PRA, the Library of Virginia notes that e-mail should be treated the same as paper correspondence. Again, e-mail is only the medium, or the envelope, by which the correspondence is sent; the retention schedule for a particular e-mail will depend on its content and should be preserved the same as its paper equivalent. Both incoming and outgoing e-mail should be retained, along with any attachments sent via e-mail.
Tips for using and managing e-mail
All e-mails related to public business are subject to the provisions of FOIA and the PRA, and should be managed in the same manner as all other public records.
There is a tendency with e-mail to hit the delete button as soon as you are finished with a particular message. However, consideration must be given to whether that particular e-mail must be retained for purposes of the PRA -- you can't automatically delete your e-mail, just as you can't automatically throw away paper correspondence and records.
FOIA governs access to records. The PRA dictates how long you are required to keep certain records. If a government entity keeps an e-mail (or any other record) for longer than its retention schedule requires, that e-mail will still be subject to FOIA if requested. Conversely, if a government entity properly disposes of a record pursuant to a retention schedule, and a subsequent FOIA request is made for that record, FOIA does not require the government entity to recreate the record.
E-mail is often used as a substitute for a telephone call, and is quite informal. However, e-mail creates a record of that communication that must be retained pursuant to the PRA and will be available upon request to the public under FOIA. Consider the consequence of choice to use e-mail instead of the telephone -- it may not be in your best interest to be as informal on e-mail as you are on the telephone.
The Library of Virginia discourages the practice of maintaining permanent records solely in electronic format, without a paper or microfilm backup.3 For records that do not need to be maintained permanently, these e-mails can be printed out and stored in a traditional, paper file (and the electronic copy can be deleted) or electronic folders can be created on the computer to organize e-mails based on functions, subjects or activities. The Library of Virginia suggests that these folders are assigned to your home directory on the computer, and not on the network. By way of example, at the FOIA Council we print a copy of all of the FOIA questions that we receive via e-mail, along with our corresponding response, and file the paper copy in a chronological file. After we have printed a copy to retain for our records, we delete the e-mail off of the computer.
Public officials and employees should not commingle personal and official e-mails. Private e-mails do not need to be retained; e-mails relating to the transaction of public business do. From an e-mail management perspective, it is probably not a good idea to mix personal and official business in the same e-mail. Official e-mails that need to be retained should be maintained with other public records that relate to the same content.
As is clearly evident; the Commonwealth of Virginia does have established guidance pertaining to the use of private email accounts by elected officials and government employees. Virginia also has laws against government officials and employees passing insider information, holding non-public meetings, conducting government business outside of the parameters of FOIA. Unfortunately, Virginia has not established laws prohibiting its officials and employees from sending government information to their private email accounts. There are no specific laws defining what can and cannot be done with government information sent to their private email accounts. There are no specific laws that allow for government or public access to their private accounts to establish audit trails or fulfill FOIA requests. There are no specific laws that prevent the disclosure of information protected from public disclosure when information is sent to a private email account. There are no specific laws requiring the registration of private email accounts used to conduct government business. Without more specific laws regulating private email use in government it is essentially left up to each official’s and employee’s conscious and integrity to decide whether or not they will follow the guidelines established by the Virginia Freedom of Information Advisory Council and the Code of Virginia.
Many communities throughout the United States of America like Gloucester County, Virginia now see many of their elected government officials and government employees using private email accounts to conduct government business, pass insider information, hold private meetings and skirt FOIA requirements. A quick look at email addresses for Gloucester County Supervisors on the Gloucester County website revealed each Supervisor having there own county government email address. A quick look at the Gloucester County Public Schools website revealed six of the seven Gloucester County School Board members list private email addresses. A review of FOIA obtained Gloucester County Public Schools email conversations revealed email conversations that were either sent to, forwarded to, carbon copied to or originated from private email addresses belonging to Gloucester County School Board members and school administration personnel. This is further evidence of these officials’ and employees’ ongoing conscious and deliberate effort to minimize transparency in local government.
Betty Jane Duncan…BJDuncan12@cox.net
Ben Kiser…Kiserben@gmail.com AND
Ben Kiser… firstname.lastname@example.org
Kimberly Hensley… email@example.com
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