FOCUS ON FOIA
Dick Hammerstrom, a local news editor at The Free Lance-Star, is an advocate for open government and serves on several statewide organizations that urge transparency.
Government email is public record, regardless of its origin
Any correspondence—whether written with pen on paper or with a computer or smartphone—sent or received by a locally elected official in Virginia about government business is a public record.
That means Virginia residents can have access to that correspondence.
It’s legally irrelevant if an email is sent or received on a government email account or someone’s personal email account. Actually, there is no legal requirement that a public body establish an email network for its elected officers.
The issue surfaced recently in King George County where a resident has expressed her unhappiness that at least two members of the Board of Supervisors use their personal email accounts for public correspondence.
This is not unique to King George. Hundreds of elected officials around Virginia do the same thing.
The law does not differentiate between government servers or home computers, as long as the correspondence deals with public business.
Either way, the elected official is:
Legally responsible for preserving those emails under the state’s record preservation laws;
Required to respond to Freedom of Information Act requests for the emails within five working days.
Email has become essential in government and, as a result, keeping track of it has become complicated.
In Virginia, there’s no statute that requires that public records be archived or stored in any particular manner. It’s left up to the agency to find its own way. Some are much more organized than others.
In Fredericksburg, for example, each City Council member is supposed to copy each email sent or received to a central file where it’s archived by name and topic. But it’s an honor-system and whether all council members adhere to it is unknown.
Stafford County apparently has no such system since a supervisor said he had to take a day off from work to search his home computer for public correspondence.
Because each locality has a different system—or no system at all—for tracking emails, the cost to retrieve them varies.
If the government has a good records management system, the cost should be lower since accessing the correspondence by a clerical worker will require minimal time and effort.
If the local government fails to establish an effective system, the cost may be greater because higher paid computer experts may have to do the searching.
The cost requestors have to pay for emails varies around the state because of the proficiency of some localities and the ineptitude of others.
Of course, public officials are not required to conduct business via electronic mail. Some don’t know how and others don’t use it simply because it is, in fact, public and they want to avoid having that correspondence subject to disclosure.
It’s doubtful the state could require each public body to establish a server that would archive all emails.
Because of the way state law defines a public body, any committee of a board or commission appointed to conduct business becomes a public body.
That includes small advisory boards that meet just a few times a year and have no real authority. There also are large regional public bodies, such as the Rappahannock Regional Jail Authority and the Rappahannock Regional Waste Management Board.
Email correspondence was not a big deal the last time the state’s Freedom of Information Act was studied. That was in 1999, and electronic mail was just taking hold.
For the next two years, the FOIA Advisory Council will be studying exemptions and changes to the law.
Email is certain to be a topic.
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