November 03, 2009 Guidelines for E-Mail Communications

KEEPING YOU INFORMED…

Pursuant to the Freedom of Information Law (FOIL), emails and other forms of electronic communication are subject to disclosure under the same circumstances as paper records.  Whenever board members use e-mail to communicate with each other in their capacities as board members, such e-mail communications are agency records.  These e-mail records must be retained by the board members.  They are subject to FOIL unless they fall under a statutory exception.

FOIL’s inter/intra-agency materials exception may apply to e-mails between or among board members, which involve communications made in their capacity as agency officials.  However, even if an email falls within this exception, portions of the contents of the e-mail may still have to be disclosed.  Specifically, the portions of an inter/intra-agency e-mail that contains statistical or factual tabulations or data (e.g., objective information), instructions to staff that affect the public, final agency policy or determinations, or external audits, including but not limited to audits performed by the comptroller and federal government, will have to be disclosed.

Opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making are not factual data and therefore not subject to disclosure pursuant to FOIL.  However, even though an e-mail may not be subject to disclosure pursuant to FOIL, it may be discoverable during the course of litigation.  The content of most e-mails can ultimately be discovered in litigation.  One of the few exceptions is an e-mail that is subject to the attorney-client privilege.  Such an e-mail may not be subject to disclosure in litigation so long as it is one seeking advice from counsel or from counsel to the board for purposes of providing legal advice.

For these reasons, it is recommended that board members not conduct school-related business via instant message or e-mail unless those communications are diligently monitored, saved and retained as official records in the ordinary course of district business.  While e-mail communication tends to be more casual than paper memos, Board members should assume that portions may some day be viewed by third parties and should be careful to draft them accordingly.

Finally, please note that as public officers, board members may confer by e-mail.  However, a series of electronic communications resulting in a collective decision (such as a vote taken by email), violates the Open Meetings Law. 

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW AND MAY CONSTITUTE ATTORNEY ADVERTISING. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2009