A recent survey of Oakland County municipal governments found that nearly 30 percent of elected municipal officials use private e-mail accounts to conduct government business, including trustees and city commission members in Birmingham, Bloomfield Hills, and at least two trustees in Bloomfield Township. We are recommending all municipalities provide municipal
e-mail accounts to all elected and appointed officials, and that they all use them consistently for communication on government-related issues as a matter of written policy.
We have already witnessed, on a national level, some of the issues that arise when public officials use private e-mail accounts to conduct official business. Similar disputes have arisen here in Michigan. Regardless of the level of government, it is increasingly clear that the use of government e-mail accounts by government officials provides the public with unfettered access to public records.
A review of Oakland County municipalities that provide e-mail accounts to elected officials clearly illustrates that the size of the municipality has little to do with the ability to provide e-mail to elected and/or appointed officials. Rather, such a determination is often made by the officials that are serving the public.
Public officials should remember that last phrase: they are serving the public. Yet, more than a few municipal clerks cited privacy of the public official as the reason for not providing or listing an e-mail account. In Bloomfield Township, one trustee – who actually has an unlisted telephone number – stated at a meeting that he prefers one-on-one contact and residents should reach him by phone, rather than e-mail.
Elected and appointed officials also should be aware that any public record, regardless if it is retained in a public or private e-mail account, is subject to disclosure through Michigan's Freedom of Information Act (FOIA). If privacy is truly a concern for those declining municipal e-mail accounts, using a private e-mail account doesn't protect them. Instead, it actually has the potential to result in a greater intrusion into their private affairs.
In addition to providing municipal e-mail accounts to elected and appointed officials, local governments should update e-mail policies to require that all government business requiring e-mail use be conducted on a municipal account. That's a distinct difference from many current e-mail policies that merely stress the use of government e-mail not be abused for private purposes. Further, policies regarding e-mail must educate employees and public officials of the state's FOIA laws, open meetings requirements, and rules on the retention of public records.
Of the more than 30 municipal e-mail policies provided to Downtown Publication, about half included language regarding the state's FOIA laws. However, none of those policies specifically addressed public records subject to FOIA on private e-mail accounts. Only two policies (Highland Township and Oxford Village) include language regarding State Archivist rules on retention/destruction of public records, as it applies to e-mail.
While the majority, if not all, municipal clerks are aware of how state FOIA laws apply to public records, few public officials elected to part-time positions on a governing body, planning commission, or zoning board of appeals are likely to be aware that their private e-mail accounts can be subject to FOIA. We seriously doubt any are aware of the state's rules on the retention of e-mails because they are considered to be public records, thus frustrating potential attempts at disclosure, whether intentional or inadvertently. And any e-mail trail that discusses possible voting of issues on an agenda item could potentially violate the Open Meetings Act. Many municipalities would be wise to take note of the city of Madison Heights' e-mail policy, last updated in 2011, which states how e-mail use must be in compliance with the state law on open meetings.
As with many technologies intended to simplify our everyday lives, e-mail use has many unintended effects, particularly when it comes to its use to create or receive public records. Keeping public records in a public system not only makes sense, there are specific laws that must be followed, and leaders must be educated in order to maintain those records. Instituting policies that clearly state potential infractions of state law, whether intentional or unintentional, are part of doing government work in 2015.
In short: if a matter is important enough to discuss with members of a public body, it should be done in a public forum, or with a record easily accessible to the public, and that can only happen if all municipalities create e-mail accounts for all public officials who should then be required, as a matter of written policy, that all government-related communication must be conducted through the government e-mail accounts.