Transcript Public Records Disclosure
P
UBLIC
H
OSPITAL
C
OMMISSIONER
R D
ISTRICT EFRESHER
O
CTOBER
12, 2010
P RESENTER : J OE L EVAN , MRSC L EGAL C ONSULTANT www.mrsc.org (206) 625-1300 1
MRSC P ROGRAMS
Inquiries
Publications
Web Site –
www.mrsc.org
Library
Training
Special Projects
www.mrsc.org (206) 625-1300 2
What to do
Call us
E-mail us
www.mrsc.org (206) 625-1300 3
How to Reach Us
Phone (206) 625-1300 1-800-933-MRSC (6772)
E-mail Web Mail Fax [email protected]
www.mrsc.org
2601 Fourth Avenue, Suite 800 Seattle, WA 98121 (206) 625-1220
www.mrsc.org (206) 625-1300 4
M
ANAGING
Y
OUR
E
LECTRONIC
C
OMMUNICATIONS
Practical suggestions for PHD commissioners in managing records
Key principles from policies of other local governments
www.mrsc.org (206) 625-1300 5
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 www.mrsc.org (206) 625-1300 6
Common Types of Electronic Records
E-mail Electronic documents Electronic copies of documents (e.g., scanned copies) Web pages Social Media Blogs Facebook Twitter www.mrsc.org (206) 625-1300 7
E-Mail as a Public Record
Which 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” (2010) Also review separate Public Hospital Districts Records Retention Schedule - Version 4.0 (March 2009) – currently under review www.mrsc.org (206) 625-1300 8
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Question:
Can an e-mail sent by a PHD commissioner from the commissioner’s personal computer be regarded as a public record?
www.mrsc.org (206) 625-1300 9
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Answer:
Yes. Records you create, use, or retain that are related to PHD business are public records, whatever their form. www.mrsc.org (206) 625-1300 10
Use of Personal E-mail Accounts and Personal Computers for PHD Business Under the PRA, whether a record is a “public record” is determined by its content and use, not by how the record was created or retained.
A commissioner’s e-mail about PHD business (e.g., PHD budget matters) is a public record.
www.mrsc.org (206) 625-1300 11
Use of Personal E-mail Accounts and Personal Computers for PHD Business It does not matter that an e-mail is created with an e-mail address ending with “.com,” “.org,” or “.gov” For example, a PHD commissioner’s official memorandum to others regarding pending legislation is a public record It does not matter whether such a record is prepared in the PHD office or on a home computer www.mrsc.org (206) 625-1300 12
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Question:
If you as a PHD commissioner have private, personal, non-PHD information in e-mails on personal computers, could those computers be subject to search? www.mrsc.org (206) 625-1300 13
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Answer:
Yes. If a PHD commissioner has been conducting PHD business on a personal computer or through a personal e-mail account, that computer and e-mail account are likely subject to search in response to a public records request. www.mrsc.org (206) 625-1300 14
Use of Personal E-mail Accounts and Personal Computers for PHD Business Additionally, if the PRA request results in a lawsuit and a court finds that the search that was conducted was insufficient, the court may order your entire hard drive searched.
This is what happened in
O’Neill v. City of Shoreline
, 145 Wn. App. 913 (2008).
www.mrsc.org (206) 625-1300 15
Use of Personal E-mail Accounts and Personal Computers for PHD Business This scenario would not result in the entire hard drive of your personal computer becoming a public record.
However, it could mean that a court would give someone else access to your personal computer and your personal files.
www.mrsc.org (206) 625-1300 16
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Question:
Are e-mails and text messages public records when they are related to PHD business and are on your cell phone, iPhone, BlackBerry, smart phone, or other personal digital assistant (“PDA”)?
www.mrsc.org (206) 625-1300 17
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Answer:
Yes. In addition to your home or personal computer, there may also be public records on your cell phone, smart phone, or PDA (e.g., iPhone, BlackBerry). www.mrsc.org (206) 625-1300 18
Use of Personal E-mail Accounts and Personal Computers for PHD Business An e-mail or text message related to PHD business falls within the broad definition of public record.
Because such records are oftentimes not saved elsewhere, other than on the PDA, the records can be easily overlooked.
www.mrsc.org (206) 625-1300 19
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Question:
Are there security risks associated with Web-based e-mail accounts?
www.mrsc.org (206) 625-1300 20
Use of Personal E-mail Accounts and Personal Computers for PHD Business
Answer:
Yes. Hackers have been able to break into Web based e-mail accounts, such as Yahoo Mail or Gmail. This could compromise confidential information sent through a Web-based e-mail account. A hacker could also send e-mails from the account, which could damage your reputation and that of the PHD. www.mrsc.org (206) 625-1300 21
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts
1.
Keep PHD and Campaign E-mails Completely Separate.
If you have an e-mail account for a political campaign, keep the account completely separate from any e-mail account you use for PHD business.
Do not use PHD resources (e.g., PHD e-mail account, PHD computer) for campaign purposes.
www.mrsc.org (206) 625-1300 1.
22
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts
2.
Keep your PHD e-mails and records clearly segregated from your personal e-mails and records.
If you choose – likely unadvisedly – to use a Web based e-mail account for PHD business, open an account solely for that purpose, making it your “official” personal e-mail account for PHD business.
Don’t use the account for any personal e-mails.
www.mrsc.org (206) 625-1300 23
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts Similarly, if you also have a personal e-mail account that you use solely for that purpose, do not use that account related to any PHD work.
If someone sends an e-mail to the wrong account, forward it to the correct account, respond from that account, and instruct the sender to only use the correct account.
www.mrsc.org (206) 625-1300 24
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts If you have a Web-based e-mail account for campaign purposes, make sure you keep that account completely segregated from any e-mail account you use for PHD business. Otherwise, you may risk having your campaign related e-mails treated as public records. www.mrsc.org (206) 625-1300 25
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts Never send campaign-related e-mails from any PHD e-mail account. When using your personal computer, create a folder for all PHD records and be diligent about placing all records related to PHD business in that folder. www.mrsc.org (206) 625-1300 26
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts
3.
Ensure your records are retained consistent with the state record retention requirements.
In that e-mails and records on personal e-mail accounts and personal computers related to PHD business are public records, they are subject to the same retention requirements as other similar records. www.mrsc.org (206) 625-1300 27
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts However, some local governments have e-mail accounts with automatic deletion policies. Keep in mind that personal computers can crash, causing you to lose any public records stored on the computer. www.mrsc.org (206) 625-1300 28
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts Recognizing such issues, take it upon yourself to understand how long these records must be retained, and take action to ensure the records are not deleted prematurely.
A recommended precautionary measure is for you to use an external hard drive to back up your records and e-mails.
www.mrsc.org (206) 625-1300 29
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts
4.
Adopt a clear policy governing the use of personal e-mail accounts and personal computers.
There are many advantages to adopting an official policy in this regard.
The policy should cover e-mail and text messages on PDAs. The policy can provide specific guidance to employees regarding steps necessary to meet security and retention requirements.
www.mrsc.org (206) 625-1300 30
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts Such a policy can also help inform the public to prevent surprises when an issue or controversy arises. If a lawsuit is filed and you are called to prove that you have made a thorough search in response to a public records request, a policy can help persuade a court that a complete and obtrusive search of your personal records in search of public records is unnecessary.
www.mrsc.org (206) 625-1300 31
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts
5.
Copy to your PHD-issued e-mail account all PHD-related correspondence.
If you have a PHD-issued e-mail account but are also using a Web-based e-mail account, always “cc” your PHD account on e-mails related to PHD business that you send from your Web-based account; And forward any such e-mails you receive on your Web-based account to your PHD-issued account.
32
Practical Advice if You’re Using Personal Computers and Personal E-mail Accounts This can help ensure that your PHD will have a copy of all e-mails that constitute public records, making it easier for the PHD to respond to any public records request.
Such a policy also decreases the chance that a search of your personal computer will be necessary in responding to a public records request. www.mrsc.org (206) 625-1300 33
Constituent E-mail
Based on the above referenced decision in
O’Neill v. Shoreline
(2008), a constituent e-mail that is specifically referenced by a member of the governing body in a public meeting is a public record and subject to disclosure.
However, other court decisions leave the state of law in this regard uncertain. See, e.g.,
Eugster v. City of Spokane
, 121 Wn. App. 799 (2004).
Therefore, you should seek legal advice before withholding any e-mails based on your First Amendment rights.
www.mrsc.org (206) 625-1300 34
E-mails and the OPMA
As a PHD commissioner, anytime you are sending e-mails to fellow commissioners, keep in mind that a Washington appellate court has ruled that e mail exchanges involving a quorum of commissioners can constitute a “meeting” under the Open Public Meetings Act. See,
Wood v. Battleground Sch. Dist
., 107 Wn. App. 550, 565, (2001) www.mrsc.org (206) 625-1300 35
Policy Principles – Best Practices
A few key points after reviewing several electronic communication policies: Employees are given direct responsibility over the initial management of their e-mails The IT staff uses innovative technology to make it easier for staff to manage records Innovative approaches lead to greater compliance with legal requirements and can reduce costs www.mrsc.org (206) 625-1300 36
Policy Principles – Best Practices
To better control records, it is best for PHD commissioners to only use PHD-issued e-mail accounts to conduct PHD business It is likely preferable for PHD commissioners to be issued PHD laptops and PHD cell phones (or other PDA device) to conduct PHD business If a commissioner’s personal computer, phone, or PDA is used, be aware of common issues that can arise regarding management of electronic records (see discussion above) www.mrsc.org (206) 625-1300 37
Sample Innovative Policies Regarding Electronic Communications
The City of Bellevue has developed a unique approach regarding electronic records management In particular, e-mail management www.mrsc.org (206) 625-1300 38
Sample Innovative Policies Regarding Electronic Communications
Goals: 1) To comply with rules for records retention, public disclosure, legal discovery 2) To address user fatigue and confusion – High volumes of information and full schedules make it difficult for staff to manage their records 3) To manage cost and IT resources – Costs of storage, maintenance, retrieval, restoration, and increasing expectations from staff www.mrsc.org (206) 625-1300 39
Sample Innovative Policies Regarding Electronic Communications
RCW 40.14 - Preservation and destruction of public records
• •
WAC 434-662 - Preservation of electronic public records
• Electronic records must be retained in electronic format for the length of the designated retention period • What is a record Destruction of public records / retention schedules Manage metadata with the record • Electronic records with archival value
WAC 434-663 - Imaging systems, standards for accuracy and durability
• What to do if you are looking to convert paper records www.mrsc.org (206) 625-1300 40
Sample Innovative Policies Regarding Electronic Communications
Goals of Bellevue project: Manage all e-mail and voicemail records in one place.
Build in retention rules so staff does not have to do it themselves.
Reduce server volumes by limiting non-record storage.
Make it easier for staff to find the information they need to do their jobs.
www.mrsc.org (206) 625-1300 41
Sample Innovative Policies Regarding Electronic Communications
Determined common e-mail folder categories: Administrative Citizen Complaints / Requests Employee Issues Finance Support Documents Legal Opinions / Advice Planning and Project Files www.mrsc.org (206) 625-1300 42
Sample Innovative Policies Regarding Electronic Communications
Allow users to customize to meet their needs, to some extent Subfolders can be created to match the way each employee works; but Parent folders cannot be deleted, renamed, or added by users.
www.mrsc.org (206) 625-1300 43
Sample Innovative Policies Regarding Electronic Communications
Bellevue uses a system called EmailXtender EmailXtender is an e-mail management software product that preserves e-mail Migrates messages from the Outlook server (where your inbox lives) to the Xtender server Removes duplicate messages and compresses message file size It’s intended to be seamless – all the employee sees are the Xtender folders www.mrsc.org (206) 625-1300 44
Sample Innovative Policies Regarding Electronic Communications
Bellevue Procedure 1.
2.
Employees are responsible for evaluating all e mail messages that are related to the conduct of the agency’s business based on set criteria of a public record.
Messages that meet the definition of a public record are managed according to their approved retention period.
www.mrsc.org (206) 625-1300 45
Sample Innovative Policies Regarding Electronic Communications
3.
4.
Employees have 3 months (approximately 90 days) from the date a message was created or received to determine if it meets the definition of a public record.
If it does, the employee is to migrate the e-mail messages to the appropriate emailXtender *Email Storage* folder based on functional categories of each department.
www.mrsc.org (206) 625-1300 46
Sample Innovative Policies Regarding Electronic Communications
5.
6.
Each functional category is tied to an appropriate retention period, in accordance with records management policy.
The city’s IT department runs a job on the first Sunday of every month to purge all e-mail messages remaining in the Inbox, Sent Items, and Deleted Items folders that are more than 90 days old.
www.mrsc.org (206) 625-1300 47
Sample Innovative Policies Regarding Electronic Communications
7.
8.
Messages placed in *Email Storage* folders will be retained for the length of the minimum retention period as approved by the Washington State Local Records Committee and the City of Bellevue Records Retention Schedule.
City staff is working with the Washington State Archives to review any e-mails that meet the definition of archival records before they are permanently deleted.
www.mrsc.org (206) 625-1300 48
Additional Resources
MRSC Website ( www.mrsc.org
):
Electronic Public Records Retention Social Media Open Government Advisor
MRSC Publications:
Public Records Act for Washington Cities, Counties, and Special Purpose Districts (November 2009) www.mrsc.org (206) 625-1300 49
Additional Resources
Secretary of State – Washington State Archives website
E-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.gov
Open Records & Open Meetings Deskbook www.mrsc.org (206) 625-1300 50
Contact Info
J
OE
L
EVAN
, MRSC L
EGAL
C
ONSULTANT
(206) 625-1300 www.mrsc.org (206) 625-1300 51