Municipal e-mail policies

September 1, 2015

One in six American workers say that e-mail is "very important" for doing their job, with about 78 percent of office workers in the United States depending on the use of e-mail, according to a recent survey by the Pew Research Center.

The nonpartisan think tank has been tracking the use of e-mail over the past 15 years, with a 2002 survey showing that 61 percent of American workers use e-mail at work. For people using e-mail for business-related purposes, having two or more e-mail accounts is typical, or even required. Worldwide, the number of e-mail accounts is expected to grow by 1.1 billion over the next three years. But while the number of e-mail accounts continue to expand, private and public policies regarding e-mail use often fails to keep up with technology and public record laws.

In August, Downtown Publications conducted a survey of the 62 municipal clerks in Oakland County. Based on more than 50 responses to that survey, at least 45 communities provide municipal e-mail accounts to their elected officials. Of those, about 32 have formal or informal policies regarding the use of e-mail, while about a half dozen are in the process of either establishing policies or updating them. Of the more than 30 policies provided to Downtown Publications, about half reference the state's Freedom of Information Act (FOIA), and whether e-mail could be subject to public disclosure; two specifically reference the state's retention laws regarding public records; while none specifically address the use of private e-mail for public business.

Under Michigan's FOIA laws, all government records except those specifically stated in the act, are subject to public disclosure, including e-mail. Government agencies can be held liable if they keep e-mail messages too long, if their messages aren't properly destroyed, or destroyed too soon. Under the law, public records sent or received on a private e-mail account are subject to disclosure and record retention rules.

First Amendment attorney Herschel Fink, who currently serves as legal counsel to the Detroit Free Press, said access to public records held on private e-mail servers may pose problems at all levels of government, as illustrated in national news in recent months. Fink, who has fought and won national and local cases regarding access to public documents, said public records are subject to disclosure regardless of the form or location.

"It's a serious problem, and a problem in Michigan as well," Fink said. "There was one decision that I'm aware of that came out of Livingston County several years ago on this issue. The circuit court judge there found that it was a violation of a number of things, but in particular FOIA, and ordered that e-mails that were sent from and to a private account were public records."

Fink said the court of appeals upheld the case. He said the law holds true regardless of the medium used for the communication. The difficulty, he said, can be in efforts to obtain public records from a private source.

"When you conduct public business as a public official with a private e-mail, that doesn't get around the obligation to produce their records, it just makes it more difficult to find, and that encourages deception," he said. "It's a significant problem, I think...It's very dangerous for public officials to do that and think they can evade FOIA. It's dangerous ground when public officials do that because it can come back and bite them, and it should."

The Michigan FOIA defines a public record as "a writing prepared, owned, used in the possession of, or retained by a public body in the performance of an official function, from the time it is created."

While it's clear that public records are subject to disclosure on private e-mail accounts, not all e-mail is subject to FOIA simply because it is sent or received from a public e-mail account.

A 2007 court case in Livingston County involving Howell Public Schools clarified the issue. In the case, a FOIA request was made for all e-mails to and from three teachers at the district, who were also acting officials with the teacher's union. The teachers union objected to the disclosure of all of the e-mails, arguing that personal e-mails and those related to union business weren't public records. While the trial court found the e-mails to be public record because they were held by the school district, a subsequent appeals court ruling overturned the finding. The court found, in its ruling, the personal e-mails, by their nature, weren't public records because they had nothing to do with the operation of the schools.

Public sector attorney Phillip Adkison, who represents Commerce Township, said the case established for Michigan that there is a limit to the reach of municipal authority and regulating private activity of officers.

"It's in their power to say that if you communicate for public business that it should, or it's even required, that it be on a public account," he said. "The school district even had that policy, but private business was conducted on it in violation of that policy."

Adkison said something similar came up once at a Commerce Township planning commission meeting.

"A member was making notes during a meeting regarding public comments by applicants for site plans," he said. "The member kept them private and didn't deposit them in the records of the township, but used them more as a personal refresher. In my opinion, that if they weren't shared and just a personal convenience, they aren't public records."

Catherine Mullhaupt, director of member information services at the Michigan Townships Association (MTA), said the group doesn't recommend whether public officials should use public or private e-mail, rather stresses that any public record is subject to FOIA, regardless of the account.

"That's completely up to them to decide," Mullhaupt said. "We aren't subject to the same limitations as say the (United States) Secretary of State. In Michigan, for (government) employees, the issue of public or private doesn't have the same impact, you're still subject to the same disclosure. It's what is in the document and how it was used, regardless of where it was kept."

The following Oakland County municipalities either provide or allow for the option of municipal e-mail accounts for elected officials: Addision Township, Auburn Hills, Berkley, Bloomfield Township, Brandon Township, Clarkston, Clawson, Commerce Township, Farmington Hills, Ferndale, Franklin, Groveland, Highland Township, Holly Village, Huntington Woods, Independence Township, Lake Orion Village, Lyon Township, Madison Heights, Milford Village, Milford Township, Northville, the city of Novi, Oakland Township, Orchard Lake, Orion Township, Ortonville, Oxford Village, Pleasant Ridge, Pontiac, Rochester Hills, Rochester, Rose Township, Royal Oak, Royal Oak Township, South Lyon, city of Southfield, Springfield Township, Sylvan Lake, Troy, Walled Lake, Waterford, West Bloomfield, White Lake, Wixom and Wolverine Lake.

Bloomfield Township Clerk Jan Roncelli said the township supervisor, treasurer, clerk, and two of the four trustees have municipal e-mail accounts. Two other trustees, she said, are considering using municipal e-mail accounts – a measure she said she is in favor of requiring.

"When I became clerk, it was automatic that I had an e-mail," she said. “It's a nice way to get ahold of people, and it's very easy to do through e-mail."

In May, 2015, Bloomfield Township trustees discussed whether or not they should have e-mails, and whether those addresses are provided to the public. Roncelli said the concern came from members of the public.

"There was no problem providing them with e-mail, but we can't force trustees to to take accounts," she said. "To me, you're better off having a public e-mail account. You have to be careful about what you do. I try to keep everything that I do with the public on the public account and a private account for private business.

"Personally, I recommend that if you contact the public, that you do it on the public e-mail system."

Roncelli said the township's policy regarding e-mail states that municipal e-mail is township property and subject to FOIA. However, she said none of the trustees who have declined taking a municipal account did so citing that specific reason, rather some said they would rather not have e-mails of a more personal nature subject to inspection by the township. Still, Roncelli said public records are subject to FOIA regardless of where they are held.

Clawson City Clerk Machale Kukuk said elected officials' e-mail addresses are created through the city and are listed as a matter of public information. E-mail addresses of appointed commissioners and board members are deemed to be private as a matter of personal courtesy to the appointees, as a matter of informal policy. She said information for any FOIA request can be provided through the city's FOIA coordinator.

Robin Luce-Herrmann, attorney for the Michigan Press Association, said state FOIA law is clear about the whether e-mail is subject to disclosure. The problem, she said, is that governmental entities don't maintain private e-mail accounts, such as Gmail. Therefore, the government's ability to provide public records from a private e-mail account can be hampered during FOIA requests.

"It should be clear, whether in paper or electronic form, it belongs to the public body and given access to," she said. "For me, it's more general. It's their job. The taxpayers are paying them ... the fruits of that work have to be made available to the public body and the public, subject to FOIA."

The issue, Luce-Herrmann said, is more of a technical problem of accessing records maintained by a private entity.

Michigan law requires that all public records be inventoried on an approved retention and disposal schedule that identifies how long records must be kept, when they must be destroyed and when certain records can be sent to the State Archives of Michigan for permanent preservation, according to the State of Michigan Records Management Service. However, not all e-mail has the same retention period.

As with paper records, e-mail records must be evaluated for their content and purpose to determine the length of time a message must be retained in accordance with the appropriate retention and disposal schedule. Because e-mail messages may be evidence of decisions and activities, both the sender and recipients of e-mail messages must determine if a particular message should be retained to document their role in agency activities. Rules for public records of cities and villages are contained in the state's General Retention ­Schedule 8, while rules for townships are specified in General Retention Schedule 10.

In general, the retention rule for cities and villages states that records exist in a variety of formats, including paper, maps, photos, digital images, e-mail and other forms. Public records, regardless of the the schedule, shall not be destroyed if they have been requested under FOIA, or are part of ongoing litigation.

"The retention periods listed on this general schedule do not specify the format that the record may exist, because each government agency that adopts this schedule may choose to retain its records using different media," the document states. "Government agencies are responsible for ensuring that all of their records (regardless of format) are properly retained and remain accessible during this entire retention period."

Because municipal e-mail servers are property of the municipality, accessing public records isn't an issue when subject to disclosure to the public. However, whether appropriate rules are followed when public officials use private e-mail accounts is another issue.

"If it's on their (municipal) server, it's a slam dunk, so it's a technical issue," Luce-Herrmann said. "The state of Michigan and public bodies have rules on the retention of documents. So, in an old-fashioned sense, say a township supervisor reaches an agreement for compensation, and it's written on a napkin from a bar and kept at home, it's still subject to FOIA. The same applies to private e-mails used to conduct public business. We just don't have a slam dunk case on it addressing those technical issues."

The Michigan Municipal League (MML) provides sample policies to its members, including policies related to e-mail use and retention. The MML's sample policy regarding e-mail retention doesn't specify whether it applies to the retention of e-mails on private or public accounts, only as to e-mail messages "that are sent and received in the course of conduction official business" in accordance with an approved records Retention and Disposal Schedule.

The MML's sample policy defines e-mail as "a means of exchanging messages and documents using telecommunications equipment and computers. A complete e-mail message not only includes the contents of the communication, but also the transactional information (dates and times that messages were sent, received, opened, deleted, etc.; as well as aliases and names of members of groups) and attachments. Transactional information can be found and printed or saved from the e-mail system."

The sample two-page policy lays out the responsibilities of employees, the municipality, and the municipality's FOIA and litigation coordinator.

While the MML states that the sender of an e-mail is generally considered to be the person of record for an e-mail message, recipients should also maintain an e-mail as a record if they take action as a result of the message.

When Downtown Publications contacted municipal clerks in Oakland County to obtain those e-mail policies that exist, the following communities replied with either formal written e-mail policies or informal policies: Berkley, Beverly Hills, Birmingham, Bloomfield Township, Brandon Township, Clawson, Commerce Township, Farmington Hills, Ferndale, Highland Township, Independence Township, Leonard Village, Madison Heights, Milford Township, Milford Village, Northville, Novi, Oakland Township, Orchard Lake, Orion, Ortonville, Oxford Village, Pleasant Ridge, Pontiac, Rochester Hills, Rose Township, Troy, Walled Lake, Waterford, White Lake, and Wixom.

However, none of the policies reviewed by Downtown Publications required that electronic communications involving government issues and business be conducted on municipal e-mail systems, if they were available.

The majority of the formal e-mail policies provided to Downtown Publications fall under computer and Internet use policies in each municipality's employee policy. While each policy varies, nearly all address inappropriate use of e-mail, such as obtaining obscene or pornographic materials; security issues, such as the sharing of passwords or virus prevention; and whether or not municipal

e-mail accounts are permitted to be used for private uses.

Most policies also state that e-mail in the municipal system is property of that government, and that users shouldn't have an expectation of privacy, as messages may be reviewed by the municipality or be subject to public disclosure. And, while some policies address retention of e-mail messages, the issue is mostly addressed as a best practices policy for security and storage reasons.

In Highland Township, the municipality's e-mail policy specifically addresses e-mail as a public record meeting certain requirements of the state's retention laws.

"Electronic mail may constitute a public record under certain circumstances and may be accessible or obtainable by individuals, agencies and others outside the Charter Township of Highland and subject to State archivist rules for retention/destruction," the policy states. "All e-mail originating or received by the Charter Township of Highland computer systems is charter Township of Highland property, and there is no individual right of privacy on Township computer e-mail."

Similar language found in Highland's policy is included in the e-mail policy in Oxford Village.

Troy's e-mail policy, which was created in 1998 and last updated in 2008, includes a guide to e-mail etiquette, as well as rules specifying appropriate uses and a reminder to employees that all messages are property of the city and subject to FOIA.

The Madison Heights city policy regarding computer and e-mail use does state that computer equipment issued to elected officials may not be used in any violations of FOIA. Further, the policy was updated in 2011 to address the State's Open Meeting Act in regards to e-mail use.

"Council shall not use e-mail in the following manner: As a method of conducting a secret ballot (vote) on a matter whose deliberations are required to be open to the public; As a method of conducting a round robin vote on a matter whose deliberations are required to be open to the public; As a method of conducting closed meetings when open meetings are required; As a method of deliberation toward or rendering a decision on a public policy with a quorum of Council; and As a method to conduct a meeting over the Internet."

Many e-mail policies that were initially created in the late 1990s have been updated in the past five years or are currently in the process of being updated.

Commerce Township Clerk Vanessa Magner said while the township has an e-mail policy, the board is in the process of updating several employee policies, including the township’s

e-mail policy.

"We are in the process of revising the employee handbook, and that will be worked on. We haven't revised it with current technology," she said. "We haven't felt there was an issue, or even known what to address, with private e-mail accounts. When we work on that, I'm sure we'll get an opinion from our attorney to make sure we are handling it correctly."

In northern Oakland County, Groveland Township municipal clerk Pam Mazich said the township recently discussed creating an e-mail policy, but currently provides e-mail to staff only, not any of the other elected officials. However, size and location of a municipality don't correlate with how up-to-date a policy is, nor how widespread municipal e-mail is.

In Birmingham, elected officials and appointed committee members both use their personal e-mail accounts. While the city maintains an e-mail policy, it is guided by the information technology department, rather than the city clerk's office. Some other, larger cities haven't updated their e-mail policies in more than a decade, rendering them obsolete as technology changes.

In Pontiac, clerk Sherikia Hawkins said the policy is so old that it's virtually non-existent.

"We are working on an updated policy right now," Hawkins said. "It's significantly outdated. It hasn't been updated in a while, so it's no longer applicable. We are working on that, it's very vague." ­

 

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