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Archive for Friday, January 4, 2002

Attorney general rules that messages made on private computers are private

January 4, 2002

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— E-mail messages between city commissioners that are sent or stored on private computers are not public records, even if they deal with city business, the state attorney general's office said Thursday.

"If a specific e-mail communication is not made, maintained or kept by the city, but rather is exclusively made, maintained or kept only by the individual city commission members, it is not a public record," said an opinion by Assistant Atty. Gen. Theresa Marcel Nuckolls.

Hays City Atty. John Bird had sought the opinion after The Hays Daily News requested city commissioners' e-mails there. The paper had heard that commissioners were conducting city business via e-mail, said managing editor Mike Corn.

Corn said the paper made separate open records requests in October to each commissioner and to the city, asking for e-mails commissioners sent to each other and to non-elected city employees. The paper's attorney argued that both were public.

Bird said he agreed with the paper's attorney that e-mails between a commissioner and a city employee are public, but he maintained that messages between commissioners themselves were private.

Bird advised commissioners that the choice was theirs whether they would provide the material the paper wanted.

The paper received 82 pages of documents two weeks after the request. Three commissioners provided copies of e-mail they had saved in their computers, while another declined and another never responded.

Bird said Thursday he feels vindicated by the opinion.

"It looks like the attorney general says if we don't maintain (the e-mails), we don't have to provide them," he said.

Corn said an examination of the records showed that commissioners were conducting city business through e-mail. But the paper did not learn the extent, because not all records were provided, he said.

The state Open Meetings Act prohibits a majority of a quorum from discussing official business outside of an official meeting. However, Thursday's opinion does not address the open meetings law.

"We note that we address only the question you asked, and not the many other issues this type of question could involve," the opinion said. "However, we also note that it is very important for individual city commission members, and other city employees or officials, using city e-mail services, to be cognizant of the other laws that may apply or be implicated by such action."

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