Open Meetings, Public Records, and Technology

Staff from the Attorney General's office and the NC Office of Archives and History (Public Records management) have been educating me. Anytime the majority of members of an elected or appointed body interacts, that session becomes an official meeting. How that communication occurs is irrelevant. The limiting factor in terms of the listserv is time. Currently the Open Meetings Law is time-restrictive since since an announcement of time and place must be posted in order to comply with the law. Therefore, a listserv discussion could take place but only if 1) notice of when the discussion would take place is given to the public 48 hours in advance; 2) restricted to the time indicated on the notice; and 3) anyone who wanted to could subscribe. Voting could be handled online but would have to be time-based, anyone who wants to would have to be included in the communication, and each individuals vote MUST be public. The final disposition of the election, name of individuals voting and how they voted, becomes a long-term public record (see below). This is also the requirement for face-to-face votes. Lots of violations........

So the manager was a little bit right and a little bit wrong. Listservs can be used but they must be used in the "old" or static way rather than a more dynamic anytime/anyplace way. Rather than making communication more inclusive and more thoughtful, the open meetings law reduces email/listserv to an overlay of face-to-face practices. Yet another example of how new technologies are forced into old modes of practice rather than adjusting practice to the capabilities of new technologies (although email is certainly not new).

There is a very intimate relationship between open meetings and records management. Anytime town officials (elected, appointed, or hired) communicate in writing, that communication becomes a public record. Therefore, if 2-3 members of the IT committee or any other appointed/elected body have an email discussion about any issue that could be considered public business, those email messages become official public records, regardless of what computers or accounts they are sent from or received on.

The issue of "substantive" discussion is somewhat irrelevant. Even if members use email to arrange a meeting time, those messages are public records although they can be destroyed quickly (short-term vs long-term retention schedule). Documents subject to long-term retention include:

• Issues policy
  
• States decisions
  
• Outlines procedures
  
• Shows action
  
• Gives guidance
  
• Is unique

What the manager referred to as 'substantive' would be considered deliberative: "To deliberate is to examine, waive or reflect upon the reasons for or against a possible decision." Any of those messages, regardless of how many participants are included in the discussion, fall under the public records law. Wonder how many violations that makes........

All very complicated and very very fascinating. Both of the state officials I discussed this with are incredibly helpful, aware of the problems, and very interested in how we improve access through technology.