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SEE YOU IN COURT! - February 2016

CABE Journal

February 2016

Authors: Thomas B. Mooney

Mr. Superintendent knew that his news for the Nutmeg Board of Education would cause a stir – the Nutmeg Public Schools were looking at a deficit for 2015-2016 of around $1,000,000.  While the warm weather had resulted in savings in the fuel account, special education expenditures were far in excess of the amount budgeted.  To make matters worse, the unanticipated costs came from over a dozen new special education students, rather than one or two very high-cost cases that would have triggered some state reimbursement.  Mr. Superintendent knew that he would have to “announce” the problem and related cost-cutting measures at a public Board meeting.  But he did not want to surprise the Board members.  So he sent out an email to the Board members, explaining the problem and alerting them to his plan to “announce” the projected deficit at the next Board meeting.  The Board members had a couple questions, which they asked Mr. Superintendent by return email, and to which he responded, but by and large the Board members accepted the bad news gracefully.

At the next Board meeting, Mr. Superintendent made his public announcement.  Nancy Newshound, ace reporter for the Nutmeg Bugle and astute observer of the Nutmeg Board of Education, was shocked and suspicious at how blasé the Board members were after they heard the news about the huge deficit.  At the end of the meeting, she buttonholed veteran Board member Bob Bombast to ask what just happened.  Bob played dumb and professed not to know what Nancy was talking about.  But Bob cracked when Nancy questioned why Bob and the other Board members seemed not to care about such a significant problem.

“Well,” Bob admitted, “Mr. Superintendent gave us a heads-up by email.  The Board has known about this problem since then, and everything is under control.”

Nancy’s eyes sparkled with anticipation when Bob mentioned email.  “Thanks for the information, Bob.  Under the FOIA, I want access to all of the emails of the Board members and Superintendent about budget issues this year.  Are you going just give me your emails or am I going to have to make a written FOIA request?”

“I have nothing more to say to you,” responded Bob as he scuttled away.

Undeterred, Nancy promptly sent Mr. Superintendent an email asking for “prompt access to all email communications between him and among Board members concerning the 2015-2016 budget.”  Mr. Superintendent responded that it would take a very long time to respond to the request, what with the necessary redactions, but Nancy shot back that redactions would not be necessary for information concerning the budget and that she would not tolerate foot-dragging.

Mr. Superintendent promptly informed the Board by email of Nancy’s request and told them that the technicians would be searching email on the district server by key words to respond on their behalf to Nancy’s request.  Bob Bombast, however, responded by saying that the technicians would not find all the emails from him, because he does his Board business on his trusty old AOL.com email account.  Intrigued, Board member Mal Content wrote back to say that he did not realize that using a personal email account was an option, and that he too would be using his personal email account to shield his emails from Nancy’s prying eyes.

Will this strategy work?

*        *        *

Of course not.  Board of education members are public officials, and as such fall within the definition of “public agency” under the Freedom of Information Act.  Records of public agencies are public records wherever they are created, and using personal email does not change that fact.  Indeed, use of personal email can cause problems for the individual board of education member and the board as a whole.

We start with the definition of “public record,” which the FOIA defines 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, . . . whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.”  There are two points in this definition of particular interest relating to email.  First, the records must relate “to the conduct of the public’s business,” which implicitly means the business of the agency on which the member serves.  Therefore, board member emails will be public records only if they relate to board business.  Second, however, the definition includes records that are “received or retained” by the public official.  Thus, emails relating to board business that board members receive from members of the public will also be considered “public records,” even if the board member did not respond to or even acknowledge the email.

The Freedom of Information Commission has decided on numerous occasions that public access to public records does not depend on where or how the record was created.  When board members use their personal email for board business, therefore, they take personal responsibility for complying with FOIA responsibilities, which has two major consequences.

First, board members become personally responsible for providing public access to the records that they alone control.  If a member of the public asks Bob Bombast for access to his Board emails on any particular topic, he will be responsible for conducting a search supplementary to the search that district personnel can undertake, and Bob will be responsible for providing “prompt” access to any emails of which he has sole possession.  By contrast, when board member emails reside solely on the district server, district personnel can take responsibility for responding to FOIA requests.

Second, specific and varied record retention requirements apply to email records.  The Public Records Administration has opined that public agencies must apply a functional analysis.  If an email record is transitory (e.g., “I will see you then”), it need not be retained.  However, if an email can be considered routine correspondence (albeit in electronic format), for example, it must be retained for two years.  Other types of email are subject to other retention requirements, for which the individual board member will be responsible.  By contrast, email records on the district server are typically retained indefinitely, making moot any concern over record retention. 

Finally, brief comment on text messages is also in order in this electronic age.  All of the rules set forth above apply to text messages as well, but typically without the availability of the district server as a repository.  Accordingly, board members should be cautioned against having substantive exchanges by text message between themselves or with others about board business.

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