Question 1. I've gone through as much as I can find on open meetings in North Carolina and do not find anything addressing the use of communication technologies other than conference calls and broadcast (video). Is there any current explanation on the use of email and/or listservs, blogs, etc. are used in conjunction with the open meetings law?
RESPONSE: Currently, there are no statutes that explicity uses the term listserv, blogs, etc as it relates to the open meetings law, however it does mention electronic means so that would cover that form of media.
Before getting into more detailed answer, let me review how a "public body" is defined under the open meetings law found in G.S. 143-318.9 et seq. In general a public body is any authority, board, commission, council or other body of state or local government that meets two conditions:
1. It must have at least 2 members, and
2. It must be authorized to exercise at least one of the following five functions: legislative, policy-making, quasi-judicial, administrative or advisory.
The law is triggered when there is an "official meeting" of a public body. An official meeting occurs whenever a majority of the members of a group meet - in person or by some electronic means, such as: conference call video conference, etc. in order to do any of the following: conduct a hearing, deliberate, take action or otherwise transact public business.
Deliberate, as I mentioned to you in our call, is to examine, weigh, and reflect upon the reasons for or against a possible decision, if a board receives a briefing regarding an item that amounts to deliberating as well because it connotes not only a collective discussion but also a collective acquiring of information on the basis of which it will later act.
As I mentioned to you during our phone call, the use of the blog or listserv for "meeting" to transact the bodies business in my opinion falls under the open meetings law and as such requires that prior to having these meetings you should comply with the notice requirements under the open meetings law.
Question 2. My expectation would have been that the listserv should be made available to anyone who wants to subscribe as means of compliance rather than shutting it down. To me that is more conducive with the concept of open government. The listserv is set to to archive all messages and post them to a publicly available website. Does that change anything?
RESPONSE: As I mentioned to you this morning, the open meetings law allows for people to attend the meeting, but it does not give them the right to address the public body or participate in its deliberations. The ability to subscribe as means to attend the public body's meetings via the listserv.
Question 3. The Manager did differentiate between using the listserv for distribution of materials and 'substantive' discussion. Is there an official definition of what constitutes 'substantive'?
RESPONSE: It is ok to use the listserv to send materials. For example sharing a news article or materials that will be used during the official meeting. If the materials that are being sent are in the form of a briefing, that is if it going to be used a part of the "deliberative" or "substantive" discussion, then the body should convene an official meeting to receive that briefing.
Question 4. If small groups of committee members have email discussions, are those email messages subject to the public records law?
RESPONSE: Yes. In the pre e-mail days these would have been treated as memorandum and placing it in a members mailbox.
END RESPONSES FROM AG office.
While the town has an email policy and a records retention policy on email for staff, the town council operational procedures do not address email or public records. According to David Lawrence, staff policies do not apply to elected or appointed officials. A little earlier today, I was accused of focusing too much time on bureaucracy and rulemaking. And yet, these are the types of rules and practices that undergird open government.
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