Right-to-Know Law requests for public records in an issue we have been encountering more and more in our municipal work. Section 1382 of the Municipal Records Act, (53 Pa.C.S.A. 1381 et seq.), identifies public records to be any papers, books, maps, photographs, graphs or documentary materials, regardless of physical form, made or received by an entity under law or in connection with the exercise of its power and the discharge of its duties. As it now stands, any information that documents a transaction or activity of an agency and any information created or received by another business is considered public record. It is these public records, as well as any and all information transferred from one party to another, that the public has the right to know.
The Right-to-Know law provides that a municipality shall have a written policy, certain forms in place and a Right-to-Know Officer named as of January 1, 2009. If your municipality has not yet adopted a policy, Leventry, Haschak & Rodkey, LLC can assist you in preparing and adopting the required policy.
Of particular concern as to what can be considered public records are electronic transmissions, namely e-mails, which are sent and received during the ordinary course of a municipal authority’s or public entity’s business. However, there are exceptions to electronic transmissions falling within the sphere of being public records, and therefore exempted from the public’s right to know. According to Section 67.305(a) of the Right-to-Know Law (65 P.S. 67.102 et seq.), there exemptions are:
- The e-mail fits one of thirty statutory exceptions (as identified in 67.708);
- The e-mail is protected by a legal privilege; or
- The e-mail is otherwise exempted from disclosure under some federal or state law, regulation or court order.
In addition, to safeguard against any potential embarrassment when a request for public records is made and the electronic transmissions do not fall under of the aforementioned exemptions, the entity can adopt a Record Retention and Document Destruction Policy. This Policy outlines the certain criteria for dealing with how long municipal documents should be kept, what documents should be permanently deleted on a regular basis, i.e.. monthly, bi-monthly, etc. The respective agency adopting such a policy may print e-mail criteria that pertain to the municipal issues at hand and delete electronic files off the system, only maintaining the hard copies in an associated file in accordance with the Policy.
It is acceptable to e-mail another board member to ask a question or to bring up an idea that should be discussed during a meeting. However, it is never advisable to have a full discussion through e-mail. It is too risky to maintain certain conversations that could be retrieved later. We recommend a policy of regularly deleting messages that are in fact not worth keeping. One reliable policy concerning electronic transmissions is to avoid personal conversations and remain on the subject without personal commentary or opinion.
It should also be noted that e-mails are not the only electronic files that may be requested as public records. In this age of technology, numerous people are using other electronic are using other electronic devices to communicate, such as cell phones, Blackberries, iPhones, etc. These items would also be considered public records if dealing with municipal issues. The most important factor to remember is deleting messages that are personal, because if the records are requested by the Office of Open Records for a certain time period, there is no way to get rid of those personal messages that were delivered within the relevant time frame without violating the Act.