Are school board members required to save and store e-mails on business issues for future disclosure? Can they store them elec­tronically or must they be in hard copy? Must the data be stored at the school board office? What if the school board member is using the school system's computer and also sends an e-mail to her husband on a private matter - is it subject to disclosure because it was sent on a school-owned computer? Will the school system's acceptable use policy forbidding personal use of school computers affect the answer to the preced­ing question?

Electronic transmission of information is expanding in incredibly exponential fash­ion, and state legislatures and courts have not been able to keep up. The answers to these questions are not always clear. How­ever, the logic of FOIA laws can be applied to make some predictions as to how courts would likely answer these questions.

 

E-Board Meetings

 

What is a "meeting?"

Generally, open meet­ing laws require that there be an actual meet­ing of a majority (quorum) of a board or council to discuss business matters. The meeting can be in person or telephonic, but simultaneous communication is required. Some states, such as Virginia, expressly pro­hibit telephonic meetings unless a quorum of the public body is actually physically as­sembled at a published location, and the physical and telephonic communications are available to the public.

An examination of several state statutes demonstrates the diversity of definitions of "meeting":

$                   In 1994, California amended its Sunshine Law, the Brown Act, to define "meeting" as "...any use of direct com­munication, personal intermediaries, or technological devices that is employed by a majority of the members..." Cal. Govt. Code Ann. '54952.2 (West, 1998).

$                   In Montana the term "meeting" is de­fined as "the convening of a quorum ...whether corporal or by means of electronic equipment to hear, discuss or act upon a matter ...." Mont. Code Ann. '2-3-202 (West, 1997).

$                   Colorado defines "meeting" as "any kind of gathering convened to discuss public business, in person, by telephone, elec­tronically, or by other means of commu­nication." Col. Rev. Star. Ann. '24-6­402 (West, 1998).

$                   The Freedom of Information Act in Virginia provides that any governing body conducting a meeting where the "public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically present" violates the law 1950 Va. Code Ann. '2.1­343.1 (as amended) (Michie, 1998).

$                   A 1998 Florida Attorney General opin­ion concluded that because state law re­quired school boards to meet at "a public place in the county," a quorum of the school board must be physically present. The board, however, could use electronic means to enable a minority of members who were absent to be included.

 

When is a meet­ing "convened?"

Generally, a single e-mail from one board member to another on a matter of school business does not trigger the open meeting re­quirements of no­tice and public ac­cess. However, when that e-mail is forwarded to a third board member with comment, especially if three constitutes a quorum, the e-mail could violate open meet­ing laws.

A listserv allows simultaneous commu­nication with several or all of the board mem­bers. It is not difficult to appreciate that use of a listserv to discuss public business out of the public eye violates at least the spirit, if not the letter, of open meeting statutes.

 

Groupware

Live, interactive technol­ogy is now generally available. Referred to as "groupware," it creates the equivalent of a limited access "chat room." Touted as able to improve the efficiency of meetings and the flow of information in organizations, it allows long distance meetings at very low cost.

Lotus Development Corp. produces Lotus Notes8 and Domino8 as groupware products with a large market niche in both public schools and the corporate arena. Microsoft's Exchange8, and Novell's Groupwise8, are strong challengers. As more organizations create intranets, net­works of significant data and collaborative capability are increasingly available.

Any business communication among a majority of board members transmitted via a chat room, groupware, intranet, listserv or similar media is likely to be viewed by a court as a meeting subject to open meeting requirements.

 

Opinions and Cases

A 1995 Kansas Attorney General's (AG) opinion found school board members in probable viola­tion of that state's Sunshine Law if a quo­rum of "board members simultaneously engage[s] in discussion of the board busi­ness through computer terminals." Kan. Arty Gen. Op. No. 95-13. This was based upon the Kansas statute which defines "meeting" to in­clude any "gather­ing, assembly, tele­phone call or any other means of in­teractive communi­cation." K.S.A.75­4317(a). However, the attorney general opined that if "a sender of a message does not get an im­mediate response from a receiver, the communication is not interactive." Simply sending a message to other board members would not constitute an "interactive com­munication" as defined by law. Id.

The Kansas Attorney General provided further guidance in 1998, declaring that a series of meetings, each of which involves less than a majority of a quorum, but col­lectively totaling a majority of a quorum, at which there is a common topic of discus­sion of the business or affairs of that body, constitutes a meeting for purposes of the Kansas Open Meeting Act. Kan. Arty Gen. Op. No. 98-26. An example would be a communication tree in which the Chair e­mails board mem­bers one-by-one and asks their opinion on a con­troversial subject. Although no more than two board members would be "speaking" to each other at a time, the survey or poll would violate the Sunshine Laws.

Similarly, the Kansas AG said, if one board member e-mails another, who, in turn, adds to the e-mail and forwards it to another, that would violate the law. The same would be true of a group mailing list (listserv) in which each member automati­cally receives and can comment on messages posted by others. The obvious problem is that members could exchange their thoughts on an issue, and even develop a consensus, without ever gathering or communicating in real time.

The National Association of Counties, in its on-line publication Online County News, reported on a Sarasota County, Florida case where a majority of county com­missioners agreed by e-mail to sell a pro­posed library site to a private developer, but to withhold a public vote until a public elec­tion a few months later. A lawsuit turned up the e-mails of the secret arrangement, but the suit was dropped when the newly elected commissioners made the same deci­sion as the old ones. Online County, News, Vol. 29, No. 21, Nov. 10, 1997.

The Kansas opinion can be contrasted with Del Papa v. Board of Regents of the Uni­versity and Community College System of Ne­vada, 956 R2d 770 (Nev. 1998). In Del Papa, the Nevada Supreme Court held that "a quorum of a public body using serial com­munication to deliberate toward a decision ... on any matter over which the public body has supervision" violates the Nevada Open Meeting Law. The chairman of the school board had sent faxes to board members requesting their opinions about whether to issue a statement to the press condemning public criticism of school board activities by one of its members. The board members responded individually by telephone to the chairman, who ultimately decided not to issue the statement.

The Court based its decision on the Act's definition of "meeting," and on decisions from other states that the making of decisions by pub­lic bodies using telephone or mail polls without pub­lic attendance con­stitutes a meeting in violation of the spirit of the Sun­shine Law. The state code contained a provision that "elec­tronic communication ... must not be used to circumvent the spirit or letter of the [Sun­shine Law]."

In a 1985 California case, Stockton Newspapers, Inc. v. Members of Redevelopment Agency, 171 Ca1.App.3d 95, 214 Ca1.Rptr. 561 (1985), the state's Court of Appeals held that a "meeting" had oc­curred when a local development board and its attorney conducted a series of nonpublic telephone conversations to obtain the commitment of a majority of board members on a matter of public interest. The court rejected the "serial" ver­sus "simultaneous" distinction as did the Nevada Supreme Court in Del   Papa.

The "quorum" issue was explored in a Missouri case in 1996, Colombo v. Buford, 935 S.W2d 690 (Mo. Ct. App. 1996). An appellate court ruled that school board members did not violate the law when they held a series of one-on-one conversations in person and by telephone to discuss renew­ing the superintendent's contract. It was sig­nificant to the court that less than a quo­rum of the board participated in the conversations.

However, the court warned that it was "not so naive as to be blind to the fact that those inclined to violate the Open-Meeting Laws could do so by using the quorum re­quirement as a shield. This could be done by conducting, in effect, the equivalent of a `public meeting' in a series of >closed meet­ings= with numbers of less than a quorum in each such meeting .... Id. at 699, citing David Ranken, Jr. Tech. Inst. v. Boykins, 816 S.W 2d 189, 192 (Mo. 1991)." If the board then met to "ratify publicly that which had already been done in private," the spirit of the Sunshine Law would be violated. Id. The logic of Colombo was affirmed by the Eighth Circuit in Hanlen v. School Dist. of Riverview Gardens, 183 EM 799 (8^th Cir. 1999).

 

4 Practical Considerations

1.              School board members [and administrators] must be well­ informed as to their legal responsibili­ties when using electronic communications. They must understand their state's Open Meeting Laws and appre­ciate when an e-mail or fax may trig­ger those laws. They must be com­mitted to the spirit of the law, which is conducting public business in an open and responsive manner. Further, the remedy for violation of Sunshine Laws generally is nullification of the underlying action, which would wreak havoc on a school board.

2.              E-mails and faxes to other board mem­bers by themselves generally do not implicate Open Meeting Laws. The mere exchange of ideas and informa­tion between two board members is not the conduct of public business. It is not the deliberative process that Sunshine Laws demand be available to public scrutiny.

3.              Simultaneous or serial communications generally will implicate Open Meeting Laws. These communications begin to form the give-and-take that character­izes the deliberative process, and should be done in an open forum. Public busi­ness usually includes the adoption of any proposed policy, resolution, rule or other formal action, and any deliberative ac­tivities on those matters.

4.              E-meetings often can allow absent board members to participate in important public issues, which is very beneficial to the representative nature of board work. Generally, however, there should be a quorum present at a physical location where the press and public are present, and the press and public should have the same access to the electronic input as the board members. This can be accom­plished by speaker phones for telephone meetings, or with projectors or large screens for computer-based information or communication.

 

Freedom of Information Act Considerations

State Sunshine Laws, Public Records Acts, and Freedom of Information Acts require public access to certain records. Although statutes vary widely, they generally require that records documenting policies, deci­sions, procedures and other operations of public offices be made available to the pub­lic.

Are e-mail records public records for pur­poses of state law? Should they be archived as is required of other documents? How well are public agents equipped to act as official custodians of such communications and to determine whether or not they are public records?

Some states, like Colorado, attempt to specifically address these issues in their Sun­shine Laws. Colorado Rev. Stat. Ann. '24­6-402.2(d)(III) provides that only e-mail used "to discuss pending legislation or other public business" is subject to the Sunshine Law, and e-mail covering other topics is not. Even this leaves significant areas open to interpretation by courts.

E-mail is a useful tool for school officials to gather information and communicate with staff, other officials, agencies and the public. But school officials must be alert that as such communication may be sub­ject to a FOIA request.

Acceptable use policies applicable to board members as well as staff are critical to managing the risks in this area. But enforce­ment can be problematic. If the locality has an acceptable use policy stating that its com­puters and/or e-mail systems shall only be used for school, not personal, use, how can the school system later argue that a" e-mail, no matter how sensitive, is not on a matter of public business?

"No personal business" policies sound good at first, but create potential issues. Just as no school system would prohibit teach­ers from taking a phone call from a spouse, likewise expecting people never to send or receive personal e-mail is simply unrealis­tic. And if the school system ignores minor violations of a "no personal business" policy, how can it then terminate someone who uses the e-mail to send unionizing messages or to advertise union activities? Consistency becomes a critical issue.

What happens when a board member sends an e-mail on his personal computer on a matter of school business to another board member on her personal computer? The school board has no archived record of the message, but is it not subject to a FOIA request if it falls within the state's document retention guidelines? The board members would be liable for not archiving or copy­ing to an official location the electronic document.

 

KNOW YOUR STATE LAWS!!

 

Practical Considerations

$                   Develop an acceptable use policy appli­cable to all users, including school board members, that is reasonable and enforce­able. Then enforce it consistently.

$                   Treat all electronic communications as potentially subject to FOIA. Do not put anything in an e-mail you would not want to read in the newspaper.