City Attorneys Summer Conference

City Attorneys Summer Conference Atlantic Beach, August 1, 2009

Dealing with Email Under the Public Records Law

David Lawrence School of Government

How Email Systems Work

Access to Email

1. The city has received a demand from the local newspaper that it be given printouts of all email messages on the city-owned computers of the manager and six other administrators over the past ten weeks. Are there any sorts of messages that the city might refuse to provide?

State ex rel. Wilson-Simmons v. Lake County Sheriff’s Department, 693 N.E.2d 789 (Ohio 1998). Times Pub. Co. v. City of Clearwater, 863 So.2d 149 (Fla. 2003) Denver Pub. Co. v. Board of County Commissioners of County of Arapahoe, 121 P.3d 190 (Colo. 2005). Office of the Governor v. Washington Post Co., 759 A.2d 249 (Md. 2000)

2. The local television station has asked for copies, under the public records law, of all email received by council members from constituents, whether at home or at the town office. Are these subject to the public records law?

3. The city has received a demand from the local newspaper that it be sent a copy of each email received or sent by the manager. How should the city respond to this demand?

West Valley View, Inc. v. Maricopa County Sheriff’s Office, 165 P.3d 203 (Ariz. Ct. App. 2007). Howard v. Sumter Free Press, Inc., 531 S.E.2d 698 (Ga. 2000). 4. The finance officer has received a request for all email she has received or sent in the last four months concerning a controversial construction project. There are about 15 emails in her “deleted items” folder that concern the project. Are these still public records that must be turned over to the requester? There are also another 10 emails that she has deleted from her deleted items folder. They can be retrieved, however, from some existing backup tapes that the city regularly makes of its email server and keeps for 60 days. Which, if any, of these emails are still public records?

State ex rel . Gehl v. Connors, 742 N.W.2d 530 (Wis. Ct. App. 2007). Governor’s executive order (attached)

Email Retention

How long must a city retain the following emails: - Fleming Bell’s reply to an email you sent to him asking a legal question. - David Lawrence’s reply to an email you sent to him asking a legal question. - An email from the manger, setting out the agenda for the meeting of a special task force created to downtown revitalization. - An evaluation of an employee made by the relevant department head. - An email from a council member confirming her planned attendance at a committee meeting.

Here are two useful URLs:

The “Records Retention and Disposition Schedule” for cities and towns: http://www.records.ncdcr.gov/local/municipal_2009.pdf.

“Email as a Public Record in North Carolina: Guidelines for its Retention and Disposition,” published by the Department of Cultural Affairs: http://www.records.ncdcr.gov/erecords/Email_8_02.pdf

Other Electronic Records Issues

1. Reprogramming

The city maintains a data base of certain information. It has received a public records request for certain information in the data base, but the request cannot be complied with without some minor reprogramming, which can be done in-house. Must the city do the reprogramming? * * * * * It is a basic rule of public records laws that a person is entitled to have the public agency produce a record, but a person is not entitled to have a person compile information into a new record. The agency does not have to create a new record in response to the public records request. Courts have been grappling with how this rule should be applied when the records are kept electronically, and the “new record” can be created with a modicum of computer programming. Here are four recent cases from other states: Board of Education of Newark v. N.J. Dep’t of Treasury, 653 A.2d 589 (N.J. Super. Ct., App. Div., 1994) (School board asked that pension system disaggregate information on its employees, which required some reprogramming. Court requires agency to do the reprogramming, with cost to be passed on to school board.) State ex rel. Kerner v. State Teachers Retirement Board, 695 N.E.2d 256 (Ohio 1998) (Citizen sought list of retirement system members with 5 or more years of service but who were currently inactive, which would have required some reprogramming. Court holds agency need not reprogram.) The Tennessean v. Electric Power Board of Nashville, 979 S.W.2d 297 (Tenn. 1998) (Newspaper sought list of utility customers, with addresses and telephone numbers; to merge two databases and create the desired record required programming costing $450. Court holds agency must reprogram, but that it may charge the newspaper the reprogramming cost.) Schulten, Ward & Turner, LLP v. Fulton-DeKalb Hosp. Auth., 535 S.E.2d 243 (Ga. 2000) (Law firm sought variety of information about Medicare claims by hospital, which would have required reprogramming to provide. Firm offered to provide a computer technician to go through the appropriate data bases and reprogram them to produce the information. Court holds agency need not reprogram nor need it allow an outside programmer access to the databases.)

2. Computer system security features

In a slightly roundabout way, G.S. 132-6.1 denies public access to the security features of various information technology systems. Subsection (c) of the section provides that

[n]othing in this section requires a public agency to disclose security features of its electronic data processing systems, information technology systems, telecommunications networks, or electronic security systems, including hardware or software security, passwords, or security standards, procedures, processes, configurations, software, and codes.

3. Confidentiality of Information Technology Procurement Records

G.S. 143-129.8 permits use of a request-for-proposals procedure in the purchase of information technology goods and services, in lieu of the usual procurement methods used for acquisition of apparatus, supplies, material, and equipment. Subsection (d) of the section provides that any proposal submitted pursuant to a procurement procedure undertaken under the section “shall not be subject to public inspection until a contract is awarded.” Appendix A: Major Public Records Exceptions

1. Most personnel records [G.S. 115C-319 through -321]

2. Criminal records checks of employees and applicants [G.S. 114-19.2]

3. School volunteer records [G.S. 115C-209.1]

4. Student records [G.S. 115C-402]

5. Legal documents: (1) Letters from lawyers to board, about litigation [G.S. 132- 1.1(a)]; and (2) Trial preparation materials [G.S. 132-1.9]

6. Business trade secrets [G.S. 132-1.2]

7. Minutes of closed sessions [G.S. 143-318.10(e)]

8. Social security numbers and other personal identifying information [G.S. 132- 1.10]

9. Public security information, including plans and drawings of public buildings and infrastructure facilities [G.S. 132-1.7] Appendix B: The Governor’s Executive Order on Email

EXECUTIVE ORDER NO. 150 E-MAIL RETENTION AND ARCHIVING

WHEREAS, the North Carolina Public Records Law declares that the public records and information compiled by the agencies of North Carolina government are the property of the people; and WHEREAS, all e-mail messages sent and received in connection with state business are public records; and. WHEREAS, a transparent government and the citizens' right to access public records, are of paramount importance; and WHEREAS, as a result of changing technology and the need to ensure that public records are properly preserved, I established the E-Mail Records Review Panel to review and recommend changes to the current e-mail and electronic text communication record retention policies for North Carolina's executive branch agencies; and WHEREAS, the E-Mail Records Review Panel met six times, which included public hearings where the Panel heard from representatives from the North Carolina Press Association, the North Carolina Association of Broadcasters, the State Employees Association, and other interested parties; and WHEREAS, the E-Mail Records Review Panel submitted to me its recommendations and proposed changes to current e-mail and electronic text communication record retention policies; and WHEREAS, 1 have carefully reviewed and considered the E-Mail Records Review Panel's recommendations and proposed changes regarding current e-mail and electronic text communication ("e-mail") record retention policies.

NOW, THEREFORE, pursuant to the authority vested in me as Governor by the Constitution and the laws of the State of North Carolina, IT IS ORDERED THAT:

1. Executive Branch employees shall treat all e-mail messages, which they send or receive via state government e-mail accounts as public records and shall handle and maintain them in compliance with the Public Records Law and records retention policies in the same manner as paper documents or other tangible records. 2. Executive Branch employees shall not delete in a 24-hour period any e-mail messages sent or received in the course of conducting State business. 3. Executive Branch employees shall not use state e-mail accounts for political purposes. 4. Executive Branch employees shall not use state e-mail accounts for personal purposes except to communicate about family matters. All employees shall assume that information on the state's e-mail system is subject to public review and to review by state officials. 5. All outgoing e-mails sent from Executive Branch state e-mail accounts shall include language notifying the recipient(s) that the message is subject to the Public Records Law and may be disclosed to third parties. 6. Employees who conduct public business via personal e-mail accounts or nongovernment technology shall ensure that all public records are properly retained and archived pursuant to the Public Records Law and applicable record retention schedules. 7. The Department of Cultural Resources (DCR) shall provide all Executive Branch employees with online training for managing e-mail as public records, which training shall be mandatory for all employees who handle public records. 8. Information Technology Services (ITS) shall copy all Executive Branch agencies' e-mail messages to backup tapes at least once daily and shall retain the tapes for a minimum of ten (10) years. 9.Executive Branch agencies shall collaborate with the State Chief Information Officer (CIO) and DCR to employ a software platform that complies with the E-Mail Records Review Panel's recommendations, including saving backup tapes for a minimum of ten years. 10.As soon as possible, the Office of the State CIO shall procure, through the competitive bidding process, an archive system and shall work jointly and in collaboration with DCR to provide the archives/records management software package to be used by state agencies.

Michael F. Easley Governor [January 9, 2009]