Report of Counsel DR 94

I. Background.

On November 14, 2001, the Commission, on its own motion, agreed to consider issuing a declaratory ruling on the topic of e-mail and voice mail. In agreeing to consider this matter, the Commission did not bind itself to actually issuing any ruling. That would be left until after the hearing on the proposal. The Commission, however, did direct the staff to initiate the process for issuing such a ruling in the belief that the process would be of great educational benefit to the public and public agencies because it would raise the level of awareness with respect to important Freedom of Information (FOI) Act issues involved in government’s increasing reliance on the use of electronic information technologies.

After providing general notice in the Connecticut Law Journal on November 5, 2002, and specific notice to a broad array of potentially interested persons, the Commission received 53 requests to participate in the proceedings (50 governmental units and their representatives and three groups representing FOI requesters). Party status was conferred on all public agencies seeking to participate; and intervenor status, with full rights of participation, was conferred on all other entities seeking to participate because they had an interest in the proceedings.

After considerable delays due primarily to staff shortages and the need to concentrate on the Commission’s contested case backlog, the declaratory ruling process proceeded apace during the Fall and Winter of 2003-2004. Notice was given on November 21, 2003 that pre-hearing briefs and proffers of evidence were due from all participants by the close of business on December 19, 2003. Chairman Andrew J. O’Keefe permitted an automatic extension of time until December 29, 2003 to those requesting an extension for the filing of their briefs.

The Commission conducted the hearing in this matter starting on January 28, 2004 at 1:30 p.m., rather than at 9:30 a.m. due to inclement weather. All participants were advised of this possibility by telephone on January 27, 2004 and no participant alleged or proved prejudice because of the change in time. The hearing continued on January 29, 2004, January 30, 2004 and March 3, 2004.

II. Draft Declaratory Ruling.

The draft declaratory ruling addressed five issues:

1. Are e-mail and voice mail communications public records?

2. Do e-mail and voice mail communications need to be retained?

3. Is the public entitled to access e-mail and voice mail

communications upon request?

4. Do e-mail and voice mail communications constitute a meeting

under the FOI Act?

5. If e-mail and voice mail communications constitute a public

meeting, is it possible to conduct such a meeting in a manner that

complies with the FOI Act?

After a thorough and somewhat complex analysis, employing a hypothetical situation as an example, the draft decision offered some practical guidance and answered the five issues presented as follows:

1. E-mail and voice mail communications relating to the conduct of the

public’s business constitute public records;

2. It is likely that a considerable number of e-mail or voice mail

communications will need to be retained for a discreet period or

permanently, depending on the content of the communications, in

accordance with guidelines determined by the state Public Records

Administrator;

3. The public is entitled to access existing e-mail and voice mail

communications to the same extent as any other public record, subject to

the exceptions to disclosure provided under either federal law or state

statute;

4. E-mail and voice mail communications among a quorum of agency

members, may constitute a “meeting” of that public agency, if the

communications relate to a matter over which the agency has supervision,

jurisdiction, control or advisory power; and

5. A meeting conducted by use of electronic communications may be

permissible if it is conducted in a manner that comports with the

requirement that the meetings of public agencies be “open” to the public.

III. Arguments Presented.

The appendix to this report contains the procedural, jurisdictional and substantive arguments advanced by the participants to these proceedings who opposed Draft Declaratory Ruling #94. Most of these arguments, raised exclusively by public agencies and groups of public agencies, are without merit and are addressed therein. A few of these arguments, however, are valid and call into question the advisability of rendering a declaratory ruling on the issues contained in Draft Declaratory Ruling #94.

IV. Findings and Conclusions.

It became clear that many participants did not comprehend the nature and intent of these proceedings. It also became clear that many participants did not understand the limited purposes of the draft ruling or the fact that the hypotheticals therein contained were for illustrative purposes only. The hypotheticals were not intended to circumscribe the specific circumstances that were addressed in the draft ruling.

In addition, some participants apparently considered the draft to be pre-ordained as the final decision in this matter. They therefore believed it was based on facts and opinions not cited or subject to examination or cross examination. This, of course, would be impermissible in a declaratory ruling proceeding. To the contrary, the draft ruling was the mere starting point of reference for these proceedings, at which all of the facts and arguments were to be presented.* We also believe that many participants significantly misread the draft ruling. Some argued that the draft, if approved, would require the transcription of voice mail messages and the acquisition of expensive technology to store and archive both e-mail and voice mail. No such requirements were stated in the draft; nor were such requirements intended.

In fairness, however, we must take some responsibility, notwithstanding our best efforts otherwise, for not making the nature of these proceedings, and the intent and purpose of the draft ruling, clearer. We simply did not anticipate the wide-spread misunderstanding about what we wrote.

Because of the misunderstandings described above, much of the evidence adduced at the hearing – particularly with respect to the costs and burdens of saving and archiving e-mails and voice mail messages - although instructive - was in large measure irrelevant to the issues at hand.

In this regard, it should be noted that some participants offered testimony based on samplings and estimates of the quantities and costs involved in storing and archiving

___________

*E.g., the Notice of Hearing states, “The hearing will provide the only opportunity to present oral and written evidence.” And Chairman Andrew J. O’Keefe stated at the beginning of the hearing, and to the same effect on subsequent days, “This Commission has agreed to consider issuing a Declaratory Ruling to offer guidance to public officials on the topic of e-mail and voice mail. This will be a formal proceeding and hearing. You have been provided with a draft of the Declaratory Ruling #94. You have been invited to comment prior to our taking any position with regard to the efficacy of this proposal. We are here to listen.”

e-mails and voice mail messages. In some instances – most notably the case presented by the Department of Children and Families (DCF) – it was apparent that the selective samplings and estimates were unscientific and were simply designed to maximize the quantities and costs involved in order to dissuade the Commission from adopting what some participants thought the draft ruling required. Thus, for example, DCF included in its sampling single e-mail messages that may have been sent to as many as 3,500 – 4,000 employees. It also utilized agency-specific costs when the department was part of pilot programs that were designed to reduce costs by utilizing enterprise-wide (i.e., government-wide), rather than agency-specific solutions.

On the other hand, some of the testimony in this regard, particularly by the Department of Information Technology, was highly credible. It was based on scientifically and skillfully developed programs that were designed to provide the technological infrastructure that would provide adequate storage and archiving capacity, at the least cost possible, for those e-mail and voice mail messages that ought to, or must be, retained. Likewise, some of the contextual insights brought by the Secretary of Policy and Management were very informative.

We believe, however, that the testimony in these proceedings most critical to the formulation of our opinion was provided by the state Public Records Administrator (PRA) herself. What constitutes a “public record” clearly falls within this Commission’s jurisdiction because the operative definition of that term is found in §1-200, G.S., a provision of the FOI Act. And under that definition, both e-mail and voice mail messages relating to the conduct of the public’s business, constitute “public records.”

On the other hand, the Commission has never disputed that the PRA has exclusive jurisdiction over determining the retention periods for such records or their classifications for that purpose. In this regard, the portion of the draft ruling that addressed the issue of retention (issue 2) was an attempt to interpret in a consistent manner the PRA’s various schedules and guidance with respect to e-mail and voice mail.

From the PRA’s testimony, it is clear that the interpretation in the draft ruling concerning e-mail was essentially consistent with her schedules and guidance; but the interpretation concerning voice mail was not. We accept the PRA’s testimony, especially since she recognized that voice mail messages that have administrative, fiscal, legal or historical value should not be destroyed without the appropriate approvals required under §11-8a(c), G.S. We also appreciate the PRA’s stated willingness to change her retention schedules and guidance in the future if circumstances warrant it.

V. Recommendations.

It is our recommendation that the Commission not issue a declaratory ruling with respect to the issues raised in Draft Declaratory Ruling #94. In our opinion, the answers provided in that draft with respect to issues 1, 3, 4 and 5 accurately reflect current law. We believe, however, that it is ill-advised to render such a ruling at this time. Because of the complexity of the issues raised in regard to issues 1, 3, 4 and 5, we now believe it best that such issues be addressed on a case-by-case basis in the context of contested cases.

With respect to issue 2 concerning the retention of e-mail and voice mail communications, we believe that that issue, as it concerns e-mail, has already been adequately addressed by the PRA. It is therefore unnecessary for the Commission to address that issue in a declaratory ruling. As to that portion of issue 2 concerning voice mail, we now believe that the draft ruling is inconsistent with the views of the PRA, although that inconsistency may be more in form rather than in substance. In addition, participant misunderstandings and apprehension, combined with the complexity of the issue - particularly as it concerns cellular telephones and privately owned voice mail systems - militate against issuing a broad declaratory ruling.

Finally, we are heartened by the PRA’s recognition that voice mail messages that have administrative, fiscal, legal or historical value should not be destroyed without the appropriate approvals required under §11-8a(c), G.S., and her stated willingness to change her retention schedules and guidance in the future if circumstances warrant it.

Respectfully submitted,

Mitchell W. Pearlman, General Counsel

Colleen M. Murphy, Associate General Counsel

Eric V. Turner, Counsel

Enclosure: Appendix