Managing Electronic Communications &

Records

AWPHD Membership MeetingJune 28, 2010

Presenters:Joe Levan, MRSC Legal ConsultantPat Mason, MRSC Senior Legal Consultant

1www.mrsc.org (206) 625-1300

MRSCPrivate nonprofit with state contractIn existence since 1930’s State funding – profits from state liquor board and

liquor excise taxesAdditional funding through contractsServes city officials, county officials, public

hospital districts, sewer and water district association, and Enduris

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Programs InquiriesPublicationsWeb Site – www.mrsc.org LibraryTrainingSpecial Projects

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InquiriesMunicipal lawManagement and administrationOpen Meetings and Public RecordsPublic works and contractingIntergovernmental relationsBudget and finance

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PublicationsFree copies sent to customersAsk MRSC – Hospital District Edition

e-newsletterMunicipal Research News – quarterly

newsletterPost-1993 publications on Web

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Sample Publication Titles

Knowing the Territory - Basic Legal Guidelines for Washington City, County, and Special District Officials

Public Records Act for Washington Cities, Counties, and Special Purpose Districts

Open Public Meetings Act

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How to Reach UsPhone (206) 625-1300

1-800-933-MRSC (6772)Fax (206) 625-1220E-mail mrsc@mrsc.orgWeb www.mrsc.orgMail 2601 Fourth Avenue, Suite

800Seattle, WA 98121

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Update on 2SHB 20162SHB 2016 – Made Several Changes to Campaign Contribution/Disclosure Laws, Including Use of Public Service Announcements (ch. 42.17 RCW)

PSA provision effective March 25, 2010 (other provisions January 1, 2012)

Section 703 prohibits municipal officers (which include PHD Commissioners) from speaking or appearing “in a public service announcement that is broadcast, shown, or distributed in any form whatsoever during the period beginning January 1st and continuing through the general election if that official or officer is a candidate.”

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Update on 2SHB 2016(continued)

We received an e-mail from Nancy Krier (PDC General Counsel) on Monday, June 21, stating:The PDC is continuing its discussion of a

possible interpretation concerning the 2010 PSA Law

She noted that she had previously corresponded with municipal attorneys on this subject and that some had given input

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Update on 2SHB 2016(continued)

She referred to a June 24 Public Disclosure Commission meeting to continue discussion and review and possibly adopt a second draft of an interpretation

She indicated that background materials, including a copy of the second draft of the interpretation, are posted on the Commission’s website at www.pdc.wa.gov under “Commission Meetings” with the agenda for the June 24, 2010 meeting

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Managing Electronic Communications & RecordsBig topic with many facetsFocus here on real life scenarios and practical

suggestionsFrom the perspective of PHDs as local

government agenciesOutline

Basic PrinciplesRetention and Public Records Act ImplicationsScenarios

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Electronic RecordsThe PRA Model Rules provide (WAC 44-14-05001):

The Public Records Act does not distinguish between paper and electronic records.

Instead, the act explicitly includes electronic records within its coverage.

The definition of "public record" includes a "writing," which in turn includes "existing data compilations from which information may be obtained or translated."

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New Retention Rules“Preservation of Electronic Public Records” Chapter 434-662 WAC (2009 & 2010)Electronic records must be retained in

electronic format and remain usable, searchable and retrievable for entire retention period

Printing a hard copy not a substitute unless approved by the applicable records committee

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Retention Requirements & the Public Records Act

A public record – including electronic records – that has retention value under the applicable retention schedule must be securely preserved for its minimum retention period (WAC 434-62-010)

If the record has no retention value under the applicable retention schedule(s), it can be destroyed

However, the PHD should confer with legal counsel before destroying records to ensure the record is not needed for other purposes (e.g., potential litigation)www.mrsc.org (206) 625-1300 14

Retention Requirements & the Public Records Act (cont.)

Under the Public Records Act, if a record is requested and it exists, the record must be provided unless an exemption under the PRA exists

Consider: Exemptions, prohibitions, and redactions

If a public record has been properly destroyed pursuant to the applicable records retention schedule(s), and a PRA request is made for such a record, the record does not exist for the purposes of the PRA

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Electronic Records

Must produce records that are reasonably locatable – one that can be located with typical search features

Metadata is likely part of the public record that must be retained and produced for inspection

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Processing Electronic Record Requests

Basically the same processAn agency should provide public records in

electronic format if that is requestedTechnical feasibility is the testMay recover actual costs – no charge for

sending an e-mail unless had to scan document

Agency can adopt schedule of actual costs for scanning, etc.

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Common Types of Electronic Records

E-mailElectronic documentsElectronic copies of documents (e.g., scanned

copies)Web pagesSocial Media

BlogsFacebookTwitter

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E-Mail as a Public RecordWhich e-mails are public records with retention value?E-mail messages are public records when they are

created or received in the transaction of public business and retained as evidence of official policies, actions, decisions, or transactions

Such messages must be identified, filed, and retained just like records in other formats

Review list from “Records Management Guidelines and General Records Retention Schedules” (new in 2010)

Also review separate Public Hospital Districts Records Retention Schedule - Version 4.0 (March 2009) – currently under review

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Social Media Important to consider use of social media by

public employees and officialsBlogs, Twitter, FacebookGenerally posts are public records if they

relate to transaction of agency business Recommend adopting agency policy

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E-Mails & the OPMADiscussion of PHD business involving a

quorum of the commissioners must take place in an open, public meeting

Serial contacts are problematic“Reply All” is asking for trouble!Providing info, one-way, is OK

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OPMA – Meeting Definition

Any transaction of PHD business involving a quorum of a governing body

What is “transaction” of business?Includes more than decisionsDiscussionsDeliberationsEvaluationsReceipt of testimony

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What is a serial meeting?

A “serial meeting” is a series of communications that individually do not include a quorum but collectively do involve a quorum.

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Scenario 1:

Question:

Would it constitute a meeting if there is an e-mail exchange between a collective quorum of board commissioners, and the board makes substantive comments on an issue?

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Scenario 1:

Answer:

If a quorum is transacting PHD business, it would constitute a meeting.

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Scenario 2:Question:

If the PHD used an official social media site to host a conversation about a PHD issue, and that conversation included comments from individual PHD commissioners, would that constitute a quorum? If the PHD “noticed” it, would it be an acceptable public meeting? www.mrsc.org (206) 625-1300 26

Scenario 2:Answer:

If the conversation included comments from a quorum of the commissioners, it could qualify as a meeting. There is no clear authority currently under the OPMA to notice a “virtual meeting.” Under current law, social media sites are best used to solicit input from the public, but not for elected officials to formulate policy.

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Scenario 3:Question:

If a PHD commissioner or employee uses his/her personal e-mail address to conduct PHD business, are such e-mails subject to disclosure under the PRA?

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Scenario 3:Answer:

Yes. If the officer or employee is using a personal e-mail account to conduct PHD business, such personal e-mails are subject to disclosure.

The definition of “public record” includes records “used” by an agency – the agency does not necessarily have to have a copy of the record.

See, Mechling v. City of Monroe, 152 Wn. App. 830 (2009).

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Scenario 4:

Question:

If a PHD official/employee accesses his/her work e-mail through his/her personal computer, does the data on the personal computer become a public record?

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Scenario 4:Answer: If the official/employee is accessing an agency

e-mail account through the internet, the e-mail itself is very likely captured on the agency's server.

Only the work e-mail on your personal computer is a public record.

A work e-mail or file could be on your personal computer if, for example, you copy a message or file from your agency e-mail account to your personal computer.

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Scenario 4: (continued)

Caution is warranted because if evidence shows that you had a work record stored on your personal computer and you cannot produce that record, there is a risk that your agency may try to (or be ordered by a court to) seize your entire computer to look for that public record.

While there may be some constitutional issues with such an action, the Court of Appeals in O'Neill v. City of Shoreline, 145 Wn. App. 913 (2008), ordered a similar action.

To limit risk in this regard, if you must save copies of public records on a personal device, maintain a diligent practice of always putting agency records in one location on your computer.

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Scenario 5:

Question:

Is a local government agency required to provide public records in electronic format?

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Scenario 5:Answer:If public, non-exempt records are held in electronic format, such

as e-mails and other records stored on computers, and if the requestor requests those documents in electronic format, the records should be provided in electronic format, either on a disk or by electronically transmitting the files.

In keeping with the spirit of the PRA, to the extent possible and feasible, local government agencies should cooperate in providing the records in the format requested. 

A jurisdiction can charge for the additional costs incurred in doing customized formatting.  See WAC 44-14-050 and the comments to that provision, starting with WAC 44-14-05001.

All metadata that is part of an electronic record should be transmitted with the record.  See O’Neill v. Shoreline, 145 Wn. App. 913 (2008).

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Practical Tips to Avoid Liability

Make sure that you have adopted policies to handle public records requests, including electronic records

Appoint a public records officer and identify that person for the public as the agency contact

Training, training, training Adopt a fee schedule for copying and

scanning costs

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Additional Resources

MRSC Website (www.mrsc.org):Electronic Public Records RetentionSocial MediaOpen Government Advisor

MRSC Publications:Public Records Act for Washington Cities,

Counties, and Special Purpose Districts (November 2009)

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Additional ResourcesSecretary of State – Washington State Archives

websiteE-mail Management – “What should I be doing?”Electronic Records Management - Advice and Resources

Blogs / Wikis / Facebook / Twitter / Web 2.0 E-mail Management Imaging / Digitization / Scanning Website Management

Washington Attorney General’s web site:www.atg.wa.govOpen Records & Open Meetings Deskbook

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Contact Info

Joe Levan, MRSC Legal Consultantjlevan@mrsc.org(206) 625-1300

Pat Mason, MRSC Senior Legal Consultantpmason@mrsc.org(206) 625-1300

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Additional Background & Legal Authorities

The following slides are included to provide additional background and legal authorities regarding the information and scenarios discussed in the presentation.

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Electronic Records

What is an Electronic Record under the Public Records Act, Chapter 42.56 RCW?

Chapter 42.56 RCW does not define “electronic record” specifically

However, “public record” is defined broadly and includes electronic records

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Electronic Records

What is an Electronic Record under Chapter 434-662 WAC re: Preservation of Electronic Records?

“Electronic record” includes those public records which are stored on machine readable file format.

WAC 434-662-020www.mrsc.org (206) 625-1300 41

Electronic Record Model Rules

Amended the original model rulesEffective July 16, 2007Primarily WAC 44-14-050 through 44-

14-070“Processing of Public Records

Requests – Electronic Records”Advisory Only

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Electronic RecordsWAC 44-14-05001:In general, an agency should provide electronic records

in an electronic format if requested in that format. Technical feasibility is the touchstone for providing

electronic records. An agency should provide reasonably locatable

electronic public records in either their original generally commercially available format (such as an Acrobat PDF/rs file) or, if the records are not in a generally commercially available format, the agency should provide them in a reasonably translatable electronic format if possible.

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Electronic RecordsWAC 44-14-05001 (continued):In the rare cases when the requested

electronic records are not reasonably locatable, or are not in a generally commercially available format or are not reasonably translatable into one, the agency might consider customized access. See WAC 44-14-05004.

An agency may recover its actual costs for providing electronic records, which in many cases is de minimis. See WAC 44-14-050(3).

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Electronic RecordsWAC 44-14-05001 (continued):What is technically feasible in one

situation may not be in another.Not all agencies, especially smaller units of

local government, have the electronic resources of larger agencies and some of the generalizations in these model rules may not apply every time.

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Electronic RecordsWAC 44-14-05001 (continued):If an agency initially believes it cannot

provide electronic records in an electronic format, it should confer with the requestor and the two parties should attempt to cooperatively resolve any technical difficulties. See WAC 44-14-05003.

It is usually a purely technical question whether an agency can provide electronic records in a particular format in a specific case.

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E-Mail May Be a Public Record Just a different form of writing – not a

separate analysisTreat as any other written documentWhether it is a public record is based on

content of e-mail not fact it is an e-mailIndividual e-mail messages may be public

records with legally mandated retention requirements, or may be information with no retention value

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E-Mail as a Public RecordIf PRA request is made:Does the e-mail exist?If yes, is there information in the e-mail that is

exempt or prohibited from disclosure? If yes, the exempt information can be

redacted and/or the information prohibited from disclosure cannot be disclosed

If the e-mail is requested in electronic format, it is to be provided in electronic format

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Exemptions

Several exemptions included under the PRAExemptions are permissive rather than

mandatoryAn agency has the discretion to provide an

exempt record

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Prohibitions

In contrast, there are prohibitions throughout the statutesAn agency cannot provide a record when a statute makes it

"confidential" or otherwise prohibits disclosureIf a statute classifies information as "confidential" or

otherwise prohibits disclosure, an agency has no discretion to release a record or the confidential portion of it

E.g., the Health Care Information Act generally prohibits the disclosure of medical information without the patient's consent – RCW 70.02.020(1)

RCW 42.56.360(2) provides that chapter 70.02 RCW applies to public inspection and copying of health care information of patients

HIPAA also provides specific protections for health care information and records

See WAC 44-14-06002www.mrsc.org (206) 625-1300 50

Quality Improvement Committee

RCW 42.56.360 provides an exemption from disclosure under the PRA for information and documents created specifically for, and collected and maintained by, a quality improvement committee

RCW 70.44.062 addresses meetings, proceedings, and deliberations of a quality improvement committee

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E-mail ManagementSource: Washington State Archives

E-mails are “born digital” and their metadata establishes their authenticity as a record

E-mails need to be retained in electronic format for their minimum retention period according to records retention schedules

By printing e-mails and destroying the electronic records you may damage the authenticity of the e-mail

Agencies can still print e-mails, as long as the electronic record is retained

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E-mail as a RecordSource: Washington State Archives

Not all e-mails are records with retention value

Risks with “auto delete” functions“E-mail archiving” is just usually “e-mail

storage,” it does not generally contain retention or disposition functionality

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Advice from Washington State Archives

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Scenario 6:

Question:

What do you advise regarding employees posting comments on PHD issues on their personal social media sites? We’ve cautioned our employees about speaking for us or identifying themselves as employees when making public statements.

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Scenario 6:Answer:

Due to the First Amendment, there are not many limits you can put on what employees say on their personal sites. But you can counsel them on the risks to their personal privacy if they start posting too much. This includes strongly encouraging them to post a “disclaimer.” This is an area where you really need specialized legal advice from an employment lawyer.

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Scenario 7:

Question:

How do you retain content and metadata in compliance with the PRA for a continually updated PHD website?

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Scenario 7:

Answer:

There are programs available that will “record” all of the changes. This is one area where local governments could act collectively and more cost effectively to find/build software that could be used by other local governments.

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Key Summary PointsSocial media sites can be public records

subject to disclosureOfficials and employees should not mix their

personal website with PHD businessContent posted on social media sites can be

subject to retention requirements so post content on the agency website first

Avoid online contact with fellow board commissioners

Consult with your PHD attorney before you proceed

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