Freedom of Information Advisory Council

June 2, 2003

The council began its June meeting by discussing the disposition of the five bills referred to it for study by the 2003 Session of the General Assembly. The council was advised that although the patrons had been invited to present and discuss the impetus for their bills with the council, none had accepted the invitation. The council decided to take no further action on the referred bills. Additionally, the council agreed that should other bills referred to it in the future that raise pressing or significant public policy issues that warranted additional study and public comment, the council would undertake further examination of the public policy issues raised by the bills.


The council heard from a representative of the Office of the Secretary of Technology on the current e-mail retention practices of the Department of Information Technology (DIT) and the feasibility of developing statewide e-mail guidelines. Additionally, the council was updated by staff on the use of e-mail and the requirements of FOIA and the Public Records Act (PRA)

The use of e-mail in the business place is becoming increasingly common, and is often a preferred mode of communication. For state and local government officials and employees, the application of FOIA relating to access to records and 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?” E-mail is a generic term, and generally refers to any communication that requires an electronic device for storage and/or transmission. E-mail is a medium for correspondence—essentially, e-mail is the “envelope” for the communication. It can be used to communicate one-to-one, or one-to-many over the computer. Each user has an e-mail address, and messages received at that address are stored in electronic mailboxes until the recipient fetches the messages. After reading a message, the user may save it on his or her computer, forward it to other e-mail addresses, respond to it, or delete it. It is also possible to send attachments, such as word processing files, spreadsheets, or digital images along with an e-mail message.

For purposes of FOIA and 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.

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 one is finished with a particular message. However, consideration must be given to whether that particular e-mail must be retained for purposes of the PRA—one should not automatically delete one’s e-mail, just as one should not automatically throw away paper correspondence and records.
  • FOIA governs access to records. The PRA dictates how long one is 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. Users should consider the consequences of choosing to use e-mail instead of the telephone—it may not be in their best interest to be as informal on e-mail as they might be on the telephone.
  • The Library of Virginia discourages the practice of maintaining permanent records solely in electronic format, without a paper or microfilm backup. 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 be assigned to a home directory on the computer and not on the network. By way of example, at the FOIA Council a copy is printed of all of the FOIA questions that are received via e-mail, along with the response, and the paper copy is placed in a chronological file. The e-mail is deleted from the computer after a paper copy is printed for the records.
  • 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 in separate folders.

Public Comment

A representative of the Virginia Press Association expressed concern related to HB 2445 and SB 1149 from the 2003 Session that excluded the Sexually Violent Predator Commitment Review Commission from the provisions of FOIA. It was suggested that instead of excluding the commission from FOIA completely, an exemption to address the need for the protection of certain commission records and meetings from public disclosure be created. The council concurred that perhaps discussion of this alternative may have been missed during the press of the 2003 Session. As a result, the council appointed a subcommittee to examine the issues raised by HB 2445 and SB 1149. Meeting dates of this subcommittee will be posted as soon as scheduled and will also appear on the council’s website to ensure participation by all interested parties.

Other Business

Council member Thomas Moncure suggested that the council consider a reorganization of § 2.2-3705, the records exemption section of FOIA. Currently, this section contains 81 exemptions from the release of records. As a practical matter, inclusion of this section in any piece of legislation expands the size of the bill by 10 or more pages, while the proposed amendment to this section may be only a few sentences. This makes the bill cumbersome and confusing to the public and legislators alike. He suggested that a subcommittee be formed to reorganize this section by identifying categories into which many of the exemptions could be grouped, and making each category a separate section in FOIA. The council expressed concern that in so doing, it would be important not to broaden the current exemptions found in FOIA. A subcommittee was appointed to undertake this task. Meeting dates of this subcommittee will be posted as soon as scheduled and will also appear on the council’s website to ensure participation by all interested parties.

Staff suggested that the council consider dedicating at least one meeting each year to setting an example for other public bodies to follow in complying with FOIA. This meeting segment would be titled “Setting the Example” and would consist, among other things, of the council’s conducting an electronic meeting to have first-hand experience with the issues raised by audio or audio/visual meetings authorized by FOIA for state public bodies. Because the council is required by law to receive reports from public bodies conducting these types of meetings, it would be beneficial to identify the advantages and disadvantages of electronic meetings as they relate to public access. Other topics suggested for “Setting the Example” included new member training, e-mail retention and access, and other related issues faced by public bodies.

Of Note

Staff presented the latest statistics of the services rendered by the council. Since its meeting in April through May 30, 2003, the council has answered 179 inquiries, including 14 requests for written opinions. In that time frame, five written opinions have been completed, with nine requests for written opinions pending. Of the 165 informal responses (via phone or e-mail), 68 were provided to government, 79 to citizens, and 18 to media.

Staff briefed the council on its plans to conduct the annual FOIA workshops at six locations around the state the second and third weeks of September (not July as had been tentatively planned). The program tentatively will include segments addressing access to records and meetings, a segment to discuss “hot topics” such as access to social security numbers and on-line records and the new terrorism-related exemptions, and a segment about law-enforcement records. Cost to attend the workshops will likely be about $35.00 to cover travel and expenses. The fee will include lunch and continuing legal education and law-enforcement credit for participants.

Next Meeting

The council plans to meet on Monday, September 15, at 2:00 p.m. in House Room D.

The Hon. R. Edward Houck

For information, contact:
Maria J.K. Everett
Executive Director




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