In the Matter of a Declaratory Ruling
On the Motion of
Draft Declaratory Ruling #94
The Connecticut Freedom of
Information
Commission
I. INTRODUCTION
Public agencies throughout Connecticut
are increasingly availing themselves of the efficiencies offered by new
electronic and computer technologies.
Among these are electronic mail (hereinafter “e-mail” and electronic
telephone messaging (hereinafter “voice mail”).
The Commission notes that the use of such technologies by public agencies
may present questions concerning the applicability of the Freedom of
Information (hereinafter "FOI") Act, Chapter 14 of the Connecticut
General Statutes. While the Commission
has some concern that the capabilities of these new technologies could be
utilized in ways that diminish public access to government, the Commission
believes that such technologies will be used in a manner that yields greater
public accountability and access to public officials. To that end, the Commission further believes
that there is value in providing public agencies, and the public, with
direction as to factors that ought to be taken into account with respect to
e-mail and voice mail, since the FOI-related issues pertaining to these
technologies have not heretofore been comprehensively considered either by the
agencies acquiring and using such technologies or by members of the public who
may seek information accessible through them.
In view of the foregoing, on , 2001 the Commission, pursuant to
Conn. Gen. Stat. §4-176(a), considered on its own motion and agreed to issue a
declaratory ruling as to whether and to what extent e-mail and voice mail
utilized by public agencies are subject to the provisions of the FOI Act; and
to the extent such communications are subject to the FOI Act, to provide
guidance as to what factors public agencies ought to take into account in order
to comply fully with the requirements and purposes of that act.
II.
NATURE OF THE PROBLEM
The list of technologies available to
public agencies is expansive and growing.
While this ruling focuses specifically on the use of e-mail and voice
mail, the general principles of the law outlined herein can be applied to other
electronic technologies as well.
The FOI issues that arise in connection with the use of e-mail and voice mail fall generally into two major categories: one relating to public records and the other to public meetings. The issues in the first category concern whether and when records of e-mail and voice mail communications must be treated as public records, subject to the FOI Act and the records retention laws administered by the state Public Records Administrator. See Conn. Gen. Stat. §11-8. The issues in the second category center on whether communications by such electronic means constitute a meeting of a public agency, and if they do, at what point, and what measures need to be taken to ensure the public access that is required under the FOI Act.
This declaratory ruling is designed to
provide answers to the following questions:
1).
Are e-mail and voice mail communications public records?
2).
Do e-mail and voice mail communications need to be retained?
3).
Is the public entitled to access e-mail and voice mail communications
upon request?
4). Do e-mail and voice mail communications constitute a meeting under the FOI Act?
5).
If e-mail and voice mail communications constitute a public meeting, is
it possible to conduct such a meeting in a manner that complies with the FOI
Act?
As
noted above, new and improved electronic technologies are becoming available to
public agencies at a rapid rate. Thus,
technology already exists that amalgamates the functions of e-mail and voice
mail (and even audio/visual electronic conferencing). The Commission believes, however, that most
government agencies in Connecticut have not yet acquired such sophisticated
systems. Consequently, for purposes of
this ruling, the Commission shall define and use the terms “e-mail” and “voice
mail” separately, although both terms can properly be merged into one
definition that could also include audio/visual electronic conferencing.
For purposes of this ruling:
A. E-mail. E-mail
means all information transmitted or received electronically by computer by a
public agency, as defined in Conn. Gen. Stat. §1-200(1), which information is
also stored electronically by computer in the process of transmission and
reception. E-mail does not include a
facsimile (fax) transmission received by a public agency on paper.
B. Voice mail. Voice
mail means all information transmitted by voice and received and stored
electronically for playback by a public agency, as defined in Conn. Gen. Stat.
§1-200(1). Voice mail does not include
information transmitted by voice, received and transcribed by a public agency.
C. Public Records. Public records or
files means:
“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, photostatted, photographed or
recorded by any other method.” See Conn.
Gen. Stat. §1-200(5).
D. Meetings.
Meeting means:
“any hearing or other
proceeding of a public agency, any convening or assembly of a quorum of a
multimember public agency, and any communication by or to a quorum of a
multimember public agency, whether in person or by means of electronic
equipment, to discuss or act upon a matter over which the public agency has
supervision, control, jurisdiction or advisory power. . . . ” See Conn. Gen. Stat.
§1-200(2).
Note
that the meeting definition actually describes three kinds of gatherings that
can constitute a meeting. Emergency
Medical Services Commission v. FOI Commission, 19 Conn. App.
352, 355 (1989). Each of these kinds of gatherings will be examined in
the context of electronic communications in Section V.B., below. But it is important to recognize at the
outset that all three descriptions are restricted by the additional proviso
that the meeting in question is held “to discuss or act upon a matter over
which the agency has supervision, control, jurisdiction or advisory power.”
V.
ANALYSIS
In order to best clarify and explain
the highly technical and complex issues addressed in this declaratory ruling,
the Commission believes that it should exemplify them by employing a
hypothetical, yet realistic, situation that public agencies may be facing now
or in the foreseeable future. The
following hypothetical fact situation illustrates both the public records and
public meetings questions that might arise when public agencies avail
themselves of e-mail and voice mail technology:
A
first selectman (of a three-member board of selectmen) sends an e-mail to his fellow
selectmen about the board’s upcoming vote on a proposed settlement agreement
between the town and a former town employee, indicating his support for
adoption of the agreement. The second
selectman replies, noting that she concurs with the first selectman’s opinion
concerning the agreement. The third
selectman leaves voice mail messages with the first and second selectmen
expressing her concerns with the agreement and stating that she will not vote
in favor of it.
The
questions presented by this hypothetical correspond with the issues to be
addressed in this declaratory ruling.
A.
E-mail and voice mail as public records.
(1) Are e-mail and voice mail communications public records? This question goes to the threshold issue to be dealt with in this declaratory ruling, i.e. whether e-mail and voice mail communications constitute public records. It is the Commission’s view that e-mail and voice mail communications relating to the conduct of the public’s business prepared, owned, used, received or retained by a public agency, are clearly public records within the meaning of Conn. Gen. Stat. §1-200(5).
Applying the public records analysis set forth above to the hypothetical, the e-mails and voice mail messages circulated among the board members are public records. The communications relate to the conduct of the public’s business and were prepared, used received or retained by members of a public agency.
(2)
Do e-mail and voice mail communications need to be retained? The answer to this second question is more
complex. A public agency is not free to
erase or destroy its public records without approval or consequence. Other laws and policies come into play in this
regard. Conn. Gen. Stat. §§7-109, 11-8
and 11-8a provide for a public records retention and destruction system
administered by the state Public Records Administrator in the Connecticut State
Library. And Conn. Gen. Stat. §1-240(a)
provides criminal sanctions for the wrongful destruction, mutilation,
disposition or alteration of a public record.
The state Public Records Administrator has issued well-reasoned guidelines with regard to the retention of e-mail messages. (See General Letter 98-1 from the Office of the Public Records Administrator and State Archives, appended hereto as Exhibit A). In that letter, the public records administrator categorized e-mail messages that are circulated among public officials into three categories. The Commission endorses the concepts contained in the public records administrator’s guidelines. In addition, the public records administrator’s general retention schedule for state agencies, indicates under the category of voice mail and the applicable footnote, that the same considerations concerning retention should be applied to voice mail that are applied to e-mail. (See Schedule S1 – Administrative Records, pgs. 3 and 4, March 1999, appended hereto as Exhibit B).
The first category of communications delineated by the public records administrator are the informal, routine types of communications, that contain information similar to that which would be included in telephone messages (the public records administrator categorizes these as “transitory messages”). These kinds of communications that do not contain any substantive information relating to the conduct of the public’s business, within the meaning of Conn. Gen. Stat §1-200(5) or any information relating to the decision-making processes of government, need not be retained.
The second category of communications consists of those records that, if they were created in paper format, would clearly be required to be retained for a discreet period of time, as determined by the public records administrator (the public records administrator categorizes these as “less than permanent”). Typical examples of these kinds of records are complaint records, correspondence and reports. Communications of this nature should be retained for the period prescribed by the public records administrator, in a manner whereby they can be promptly retrieved. See Conn. Gen. Stat. §§1-210(a) and 1-212(a) and discussion in section V.A.3., below.
The third category of communications consists of those records that have some enduring or historical value (the public records administrator categorizes these as “permanent or permanent/archival”). Examples of these kinds of communications would be agency final decisions or rulings and minutes of meetings. E-mail or voice mail communications that contain such information should be permanently retained, also in a manner whereby they can be promptly retrieved. Id.
Thus, the answer to the question of whether e-mail and voice mail communications need to be retained depends on the nature and content of the communications. If agency equipment is being used for proper purposes, it is likely that a considerable number of such communications will fall into either the “less than permanent” category or the “permanent” category. Agencies must retain less than permanent (retained for a discreet period, as prescribed by the public records administrator) and permanent or permanent/archival e-mail and voice mail communications but do not have to retain “transitory messages.”
Applying the public records retention analysis set forth above to the hypothetical, the e-mails and voice mail messages circulated among the board members fall into the category of “less than permanent” records. The e-mail and voice mail communications would need to be retained for the prescribed period of time.
Since a great many e-mail and voice mail communications will need to be retained at least for a discreet period, public officials and agencies that use e-mail and voice mail are advised to develop systems to cover such matters as maintenance, organization, and archiving of electronic records. Further, when a public agency is in the process of purchasing new technology (i.e., a new computer or voice mail system), attention should be paid to maximizing storage and ease of both retrieval and copying or duplication. See Conn. Gen. Stat. §1-211 concerning disclosure of computer-stored public records and the aquisition of systems that store and retrieve public records. Finally, agencies are advised to establish clear guidelines to be followed by agency personnel with regard to the retention and storage of e-mail and voice mail communications.
Based on its own experience and expertise, the Commission is aware that few public agencies in Connecticut currently have access to voice mail systems that have the capability to retain significant numbers of voice mail messages for extended periods of time or to archive them onto an easily accessible medium. The Commission is likewise aware that many such public agencies do not have the financial resources to immediately convert their voice mail systems to those that possess such capabilities. Therefore, until such time as public agencies have access to voice mail systems with the capability of either long-term retention or archiving, the Commission advises public agencies to inform their personnel that upon receipt of voice mail communications that would fall into either the “less than permanent” or “permanent” categories, that they must manually record the general content of such communications on paper (including from whom and to whom the communication was addressed and date of such communication), and retain such written communications for the period prescribed by the public records administrator. If agency personnel are not informed in this manner, public agencies may open themselves up to charges of failure to retain, or of improperly destroying, public records.
3) Is the public entitled to access e-mail and voice mail records upon request? With respect to those e-mail and voice mail communications that are public records, the same rules concerning access apply that apply to all public records, in whatever form they may be kept.
In this regard, Conn. Gen. Stat. §1-210(a) provides that:
“. . . every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of Section 1-212.”
In turn, Conn. Gen. Stat. §1-212(a) provides that:
“any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
As with any other public record, members of the public are entitled to “prompt” access to such records, a standard that is flexible depending on the particular facts and circumstances surrounding the request. Of course, e-mail and voice mail communications may be withheld from disclosure if an exemption to disclosure (contained either in federal law or state statute) applies, to the same degree as any other public record. See Conn. Gen Stat. §§1-210(a) and (b). Thus, for example, an agency need not disclose that portion of a staff member’s e-mail communication that would reveal personnel information the disclosure of which would constitute an invasion of personal privacy (See Conn. Gen. Stat. §1-210(b)(2)), or an e-mail communication containing strategy or negotiations with respect to a pending claim or pending litigation to which the agency is a party (See Conn. Gen. Stat. §1-210(b)(4)), or any portion of a record containing information privileged by the attorney-client relationship (See Conn. Gen. Stat. §1-210(b)(10)).
Hence, the general answer to the question of whether e-mail or voice mail records must be provided to a requester upon request also depends on the content of the information contained in the records. Those communications, or portions thereof, that are not exempt from disclosure, must be disclosed in accordance with the provisions of Conn. Gen. Stat. §§1-210(a) and 1-212(a). See Section V.A.2., above, concerning the retention and destruction of e-mail and voice mail communications.
Applying the access to public records analysis set forth above to the hypothetical, the e-mail and voice mail messages circulated among the board members do not appear to contain any information that would fall within an exemption to disclosure. Therefore, such communications would need to be disclosed promptly upon request during the period of time that such records are in existence, as required by Conn. Gen. Stat. §§1-210(a) and 1-212(a).
B. E-mail and voice mail communications may
constitute a meeting of a public agency.
The hypothetical described above raises the two additional questions to be addressed in this declaratory ruling, in these instances, within the realm of public meetings.
(1) Do e-mail and voice mail communications constitute a meeting under the FOI Act? It is the Commission’s view that there are instances in which e-mail or voice mail communications among members of an agency can amount to a meeting for purposes of the FOI Act, triggering the open meeting requirements of Conn. Gen. Stat. §1-225.
As stated in Section IV.D., above, the definition of “meeting” in the FOI Act contains three parts, or three descriptions of gatherings by agency members that constitute a meeting. Emergency Medical Services Commission v. FOI Commission, supra. And again, each description is limited by the proviso that the meeting in question is held to discuss or act on a matter over which the agency has supervision, control, jurisdiction or advisory power.
The first section of the definition states that “any hearing or other proceeding of a public agency” is a meeting for purposes of the FOI Act. The terms “hearing” or “proceeding” connote an event that has some degree of formality to it, as in an administrative hearing at which evidence and argument are offered and a decision is subsequently rendered by the body with jurisdiction over the matter. See, e.g., Herman v. Division of Special Revenue, 193 Conn. 379, 382-383 (1984). The Commission believes that it will be relatively rare within the immediate future that e-mail and voice mail communications would be used exclusively to conduct a hearing or proceeding of a public agency, because such communications generally lack the degree of formality contemplated by the first part of the meeting definition.
The second section of the meeting definition states that “any convening or assembly of a quorum of a multimember public agency” is a meeting under the FOI Act. Traditionally, the terms “convening” or “assembly” of a quorum in that portion of the definition connote a gathering of the members of a multimember agency, physically and simultaneously, in one location. However, it is unlikely that the drafters of the FOI Act conceived of the degree to which electronic communications could be utilized to carry out functions that would have, in the recent past, required people to be in one location, physically and simultaneously. Nevertheless, using the technology of today it is more than possible, for members of an agency to “convene” without all being physically present in the same location. For example, a quorum of agency members could simultaneously log into a “chat” room to discuss agency business, or participate in a video or audio conference through the use of computers and video cameras. By their simultaneous “log on,” or participation in, an audio or video conference, the agency members would establish a unity of time and place and their gathering might well constitute a meeting under the second section of the definition which calls for a “convening” or “assembly” of a quorum.
The Commission believes that if a quorum of members of a public agency use technology for chat rooms, audio or video conferencing, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power, then the requirements concerning access to public meetings would need to be met in order to comply with the open meeting requirements of the FOI Act. See Section V.B.2., below.
In addition, it is possible that public agency members might find themselves conducting a “meeting” within the meaning of the FOI Act through the use of e-mail or voice mail communications under the third section of the FOI Act’s definition. That section states that “any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment” is a meeting under the FOI Act.
Although the Commission has not had occasion to construe the provisions of Conn. Gen. Stat. §1-200(2) in the context of e-mail or voice mail communications, the Commission has ruled in several cases in analogous contexts concerning telephonic communications among agency members. See, e.g., Drury against West Hartford Board of Education, Docket #FIC 94-350; Carr against Allen, et al., Docket #FIC 89-191; and Pascale against Redevelopment Commission, Docket #FIC 85-137. In the context of telephonic communications, the Commission has consistently held that such communications among a quorum of agency members constitute communications by means of “electronic equipment”within the meaning of §1-200(2). Further, the Commission has held that when the telephonic communications pertained to matters over which the agency had supervision, control, jurisdiction or advisory power, such communications constituted a meeting that should have been open to the public. See cases cited above in this paragraph.
The cases concerning telephonic communications typically involved general discussion among agency members about an upcoming matter or the taking of a poll of agency members as to how they will vote at an upcoming meeting. The same analysis that applies in the context of telephonic communications, applies to communications transmitted via e-mail or voice mail. Therefore, e-mail or voice mail communications among a quorum of agency members constitute communications by means of “electronic equipment,” and if such communications relate to a matter over which the public agency has supervision, control, jurisdiction or advisory power, they would constitute a “meeting” of that public agency.
Applying the meetings analysis set forth above to the hypothetical, the e-mails and voice mail circulated among the board members would constitute a meeting of the board of selectmen. Since a quorum of agency officials communicated by means of electronic equipment about a matter over which the agency had jurisdiction and control, during a period just prior to the time at which the agency was scheduled to vote on the matter, such communications constitute a meeting under the third prong of the meeting definition.
2). If e-mail and voice mail communications constitute a meeting, is it possible to conduct such a meeting in a manner that complies with the FOI Act? Since there are circumstances under which electronic communications among members of an agency would constitute a meeting under the FOI Act, a final question must be addressed: Would it be possible to conduct a meeting, by way of e-mail, voice mail, or any other kind of electronic technology available today or in the future, in a manner that would comport with the requirement contained in Conn. Gen. Stat. §1-225(a) that all meetings of public agencies be “open” to the public?
The Commission dealt with a somewhat analogous issue, again in the context of telephonic meetings, in its Advisory Opinion #41 and the Commission is guided by its opinion therein. In Advisory Opinion #41, the Commission determined that telephonic meetings were permissible under the FOI Act, but that in order for such meetings to fulfill the requirements of what is now Conn. Gen. Stat. §1-225(a) that such meetings be “open” to the public, certain conditions would have to be met. The Commission determined that compliance with the open meeting provisions means that every person wishing to have access to the meeting in question must be afforded the opportunity to hear all of the discussions and actions transpiring at the meeting. Thus, as long as a telephonic meeting was broadcast at a particular location in such a manner that all those wishing to attend the meeting could hear and identify the participants in the proceedings, including the participants’ comments and votes, then the open meeting requirements would be satisfied.
In many instances, the analysis applied in the context of telephonic meetings in Advisory Opinion #41 can easily be applied to meetings convened by means of other kinds of electronic equipment. For example, a public agency may want to conduct a meeting by audio or video conferencing. If the electronic equipment utilized by the agency or agency members were capable of broadcasting the meeting to a particular location, in such a manner that those interested in accessing the meeting could hear, see (if video conferencing is used) and identify the participants in the meetings, then such a meeting would comply with the “open” meeting requirement. And, there would also have to be adequate notice for such a meeting in compliance with Conn. Gen. Stat. §1-225. On the other hand, e-mail and voice mail communications among agency members, on a matter over which the agency has supervision, control, jurisdiction or advisory power, would not seem to comport with the “open” meeting requirement because those persons interested in attending the meeting would not have the opportunity to hear or see the discussion and actions as they transpired at the meeting.
Applying the open meeting analysis above to the hypothetical, the board of selectmen’s meeting by means of e-mails and voice mail would not be permissible under the FOI Act, because it was not “open” to the public in accordance with Conn. Gen. Stat. §1-225(a).
VI. CONCLUSION
In conclusion, it is the Commission’s ruling with respect to the issues outlined in Section III. above, that:
(1) e-mail and voice mail communications relating to the conduct of the public’s business constitute public records;
(2) it is likely that a considerable number of e-mail or voice mail communications will need to be retained for a discreet period or permanently, depending on the content of the communications in accordance with guidelines determined by the state Public Records Administrator;
(3) the public is entitled to access existing e-mail and voice mail communications to the same extent as any other public record, subject to the exceptions to disclosure provided under either federal law or state statute;
(4) e-mail and voice mail communications among a quorum of agency members, may constitute a “meeting” of that public agency, if the communications relate to a matter over which the agency has supervision, jurisdiction, control or advisory power; and
(5) a meeting conducted by use of electronic communications may be permissible if it is conducted in a manner that comports with the requirement that the meetings of public agencies be “open” to the public.
Exhibit A
Exhibit B
By
Order of the Freedom of
Information
Commission
_____________________________
Andrew
J. O’Keefe, Chairman
Dated: _____________________________
Ordered: _____________________________
Dolores
E. Tarnowski, Clerk