Freedom of Information Advisory Council
June 2,
2003
Richmond
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.
E-mail
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.
Chairman:
The Hon. R. Edward
Houck
For information,
contact:
Maria J.K. Everett
Executive Director
Website:
http://dls.state.va.us/foiacouncil.htm
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