E-mail exchange not a meeting under Virginia's FOIA

Yesterday in Beck v. Shelton, the Supreme Court in an opinion by Justice Lemons concluded, among other things, that an exchange of e-mails between the members of the City Council of Fredericksburg did not violate the open meeting requirements of FOIA. The Richmond paper has this report ("E-mails don't make a meeting, court says," 3/6/2004), the Fredericksburg paper has this report ("Ruling clears council," 3/6/04), and the Washington Post (registration required) has this report ("Fredericksburg City Leaders Win Lawsuit on E-Mail ," 3/6/04) on the case.

This decision eliminates one objection to the use of e-mail by public officials, but the issue then becomes whether when and how the e-mails are public records subject to disclosure under the Act. In his opinion, Justice Lemons states that "There is no question that e-mails fall within the definition of public records under Code [section] 2.2-3701." Indeed, there is no question that e-mails can fall within the definition of public records under Va. Code 2.2-3701, which defines "public records" to mean "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." The term "transaction of public business" is not defined, but probably it means just about anything related to the business of the public body.

The FOI Council has this short memo on e-mail, FOIA, and the Public Records Act. One of the suggestions is that "Public officials and employees should not commingle personal and official e-mails. Private e-mails do not need to be retained; e-mails relating to the transaction of public business do. From an e-mail management perspective, it is probably not a good idea to mix personal and official business in the same e-mail. Official e-mails that need to be retained should be maintained in separate folders."

Better yet, board members who use their home computers probably ought to set up a wholly separate e-mail account for government-related communications, and expect that they might be required to produce every single e-mail they send or receive through that account.