Municipal Law Alert, July 2009
Question: Is an email a “record” subject to the open records law?
Answer: Yes, an email sent to or from a municipality concerning any municipal business is subject to the open records law.
As a general rule, a citizen may request emails under the open records law, and the municipality must provide the email unless it falls under one of the law’s specific exceptions. At its simplest, an email is no different from a letter or other type of public record. However, due to their electronic nature, emails do present some unique issues.
Responding to an open records request for emails: To begin with, if a citizen requests an electronic version of the email, an electronic version must be supplied. If a citizen requests an electronic version of the email in its “native” format, then that email must be supplied as an email (not a PDF). This electronic production requirement applies equally to emails sent to the municipality by citizens as it does to email sent from the municipality. Thus, a citizen who sends an email to a municipality risks release of that email, including that citizen’s email address and any other data that email may contain. Of course, the exceptions to the open records law apply to those emails as well.
Retention of emails: One of the unique aspects (and open records challenges) of email records is where emails are stored. Traditionally, emails are stored on local PCs, and multiple copies of those emails may be scattered across multiple PCs. Another issue is that each individual who sends and receives emails is making decisions about saving or deleting emails. As with any other government record, emails must be retained. Most municipalities have a record retention policy in place for traditional paper records, but this policy should be updated to address the unique concerns presented by electronic records, including email. It is not sufficient under the open records law to print emails and put the paper copy in a file. Emails should be retained in their original electronic format.
The need to retain emails electronically requires some sort of electronic storage system. That system may be as simple as more hard drive space, but may be something more complex. A good storage solution for emails stores email in one central location, which is easily backed up, easily searched, and maintains the native file format of the emails. Further, a retention policy that errs on the side of saving emails, rather than deleting emails, is probably wise. In addition to a retention policy, a municipality should have a backup policy in place.
Although there are exceptions, as a general rule, records need to be retained for seven years. This applies just as well to emails as any other kind of record.
Emailing from home: Do you ever send emails regarding municipal business from your personal email account? That email is a record subject to the open records law. A risk to keep in mind when using your home computer and your personal email account to do government business, though the risk may seem remote: it is possible that your home computer could be seized as part of a lawsuit involving the municipality, even though you have no personal role in the litigation.