I. Introduction.
In its 1994 Annual Report, the Michigan Law Revision Commission published a study report entitled, ELECTRONIC MAIL AND PUBLIC DISCLOSURE LAWS.(1) That study report noted that employees at almost all major jor Michigan government agencies and public universities use electronic mail ("e-mail") to communicate with each other and with the public. E-mail has replaced telephone calls and documentary communications in many instances, largely because of its speed and low cost. Michigan's public disclosure laws distinguish between telephone conversations (which are private) and documents (which are often subject to disclosure). As the 1994 study report observed, e-mail is a hybrid of these two communication media.(2)
Whether or not public disclosure laws apply to e-mail will undoubtedly have a significant impact on the mode by which public employees communicate on their jobs. Public disclosure of e-mail could considerably dampen the candor, informality, and ease of communication that makes e-mail so popular among employees of state agencies, schools, and universities. On the other hand, public access to e-mail, like public access to government records generally, would promote the goal of open government embodied in such laws as Michigan's Freedom of Information Act and the Management and Budget Act. The authors of the 1994 study report concluded that, on balance, government e-mail messages should be deemed to be both a "writing" and a "public record" within the scope of the Freedom of Information Act (FOIA) and the Management and Budget Act and, accordingly, subject to the disclosure and preservation requirements of those two state laws.(3)
II. Public Hearing.
On May 13, 1996, the Michigan Law Revision Commission held a public hearing at the State Capitol on the question of public disclosure of government e-mail. Besides members of the Commission, other persons in attendance included employees of the Department of Agriculture and the State Archivists Office, and members of the press. The following summarizes the proceedings and testimony given at that hearing.
Richard McLellan, Commission Chairman, opened the hearing and introduced the first witness, Daniel F. Hunter. Mr. Hunter, a co-author of the e-mail study report along with Professor Kent Syverud of the University of Michigan Law School, presented a summary of the study report. He noted that although no lawsuits have been filed in the state by persons seeking access to government e-mail, in his view such litigation was inevitable. At the federal level, federal courts have held that government e-mail is a document that must be preserved and retained. Mr. Hunter also stated that e-mail was obtainable under Michigan's FOIA, in view of that Act's broad definition of what constitutes a "writing" prepared by a public official. For purposes of FOIA, Mr. Hunter stated, e-mail constitutes both a "writing" and a "public record."(4) At the same time, Exemption (n) of FOIA(5) provides that communications and notes that are preliminary to a final agency determination of policy or action are exempt from disclosure under FOIA. Arguably, much government e-mail could fall under this exemption, Mr. Hunter noted. Mr. Hunter added that telephone calls are not subject to FOIA, and e-mail shares much in common with a telephone call. In addition, FOIA contains a privacy exception that could be the subject of much litigation over access to e-mail.
Although FOIA imposes no obligation to preserve records, Mr. Hunter testified that the Management and Budget Act does impose document preservation requirements for records that are of "archival value," and contains a similarly broad definition of what constitutes a "writing." Nevertheless, the Management and Budget Act's requirement to preserve records that have "archival value" might not include most e-mail. At the federal level, a federal court has concluded that e-mail is a record that must be preserved under the federal records act. From a practical standpoint, the volume of e-mail is so great that storage could present a problem.
In closing, Mr. Hunter identified a few of the unresolved issues, including the following: What kinds of e-mail should be preserved as a record, bearing in mind the ease with which e-mail can be deleted from a computer? What privacy expectations does the sender of e-mail messages have, if any? And how should e-mail messages sent to government agencies from private persons be handled from the perspective of FOIA and the Management and Budget Act? Mr. Hunter has published a law review article entitled, Electronic Mail and Michigan's Public Disclosure Laws: The Argument for Public Access to Governmental Electronic Mail, 28 U. MICH. J.L. REFORM 977 (1995), in which he advocates disclosure of government e-mail.
Comments to Mr. Hunter's testimony included some of the following observations. FOIA calls for the disclosure of government information generally, subject to a handful of exceptions. The presumption, therefore, is one of disclosure. Encrypted e-mail messages also present a problem. E-mail requests arise in two contexts: large-scale litigation against the government, and contract-bidding disputes. The most difficult problem is presented by FOIA Exemption (n) for communications leading up to a final decision which are generally excepted from disclosure. The interest in having candid discourse at the discussion phase might be chilled. A related issue is the use of e-mail as a vehicle for circumventing the Open Meetings Act.
Mr. Hunter was asked about the feasibility of amending Exemption (n) of FOIA to make it clear that the e-mail of students and researchers at state universities is exempt from disclosure. It was noted that at the time FOIA was originally enacted, e-mail was not foremost in the Legislature's mind since it was in its infancy. An appropriate legislative response might be enactment of a separate statute dealing with electronic communications and public disclosure. On a related point, many persons might have an interest in preventing disclosure of certain business-confidential information and might bring a reverse-FOIA action.
In response to a question whether there might be a constitutional argument that certain e-mail is not subject to disclosure based on the right of privacy and freedom of speech, Mr. Hunter conceded that in certain cases that might be true, but added that the primary targets of FOIA would not have such a privacy or free speech claim.
The second witness to testify was Ms. Elsa Cole, General Counsel, University of Michigan. Ms. Cole's primary concern with requiring the disclosure of e-mail was the chilling effect such a requirement could have on the open and free communication that is essential for researchers and scholars at state universities. Keeping an open dialogue among scholars and maintaining the free flow of ideas could be chilled if e-mail was subject to disclosure. Making e-mail a record for purposes of FOIA would discourage scholars from using the medium. Ms. Cole suggested that only e-mail that reflects a final action by a government agency should be subject to disclosure under FOIA. Privacy concerns, especially those involving communications between students and professors, must be respected. A blanket exemption for such communications, in addition to communications between researchers, would be the most desirable outcome, in her view. She added that the federal FOIA was not a good model to follow because there are no federal-level universities that are forced to deal with these e-mail issues. It is uniquely a state-level problem.
Ms. Cole also noted that she handles a large volume of e-mail disclosure requests. A case-by-case defense of such FOIA requests would be extremely burdensome, in her view. Ms. Cole recommended that the definitions of "public record" and "writing" should be clarified so that they cover only that e-mail that has been systematically stored or retained as evidence of a public body's policies, decisions, or procedures.
In response a query about the status of voice mail, Ms. Cole stated that voice mail should generally not be subject to disclosure, given its private and ephemeral nature. She also noted in connection with university research that intellectual pursuit could be severely chilled if a preliminary research proposal was stolen after disclosure of a researcher's e-mail. She concluded her remarks with the observation that the University of Michigan receives a large number of FOIA requests for e-mail, and that her colleagues at other schools in other states are equally concerned about this issue.
When asked whether anyone has drafted guidelines as to what types of e-mail are and are not FOIAble, Ms. Cole stated that no one had done that, and consequently e-mail requests were being handled on a costly, case-by-case basis. It was suggested that amending the definition of public records to exclude certain types of e-mail might be a desirable approach to the problem. Ms. Cole stated that any guidance or direction from the courts or the Legislature on this score would be helpful.
Ms. Cole responded to a question about e-mail litigation that one district court in Washtenaw County had held that certain e-mail was FOIAble, but the University elected not to appeal the case. It was suggested that a good starting point for dealing with e-mail would be to focus on the original purpose of FOIA and use that as a guideline for drafting a separate statute dealing with e-mail or other forms of electronic communications. Rather than enact a separate statute on e-mail, the view was expressed that it was best to keep the entire matter under the FOIA roof.
When asked whether the solution to the problem was as easy as changing FOIA's definitions of "public record" and "writing," Ms. Cole responded affirmatively.(6) When asked whether he thought the solution was as easy as as amending the definitions section of FOIA, Mr. Hunter responded that complicated problems often require complicated solutions, and that he was skeptical of simple solutions to the e-mail issue. He thought the problem was a subtle one, although Ms. Cole was of the view that her solution would not make matters any more unwieldy than they currently are. An illustrative list of e-mail that should be preserved and that would be FOIAble would be helpful, although Mr. Hunter thought that there was too much room for disagreement on this issue to create such an illustrative list. When asked whether changing the definition would cut down on the amount of litigation, Ms. Cole thought that it would.
When asked about the types of FOIA/e-mail requests the University receives, Ms. Cole stated that the nature of the requests were sometimes focused on specific e-mail by date, sender, etc., and that other e-mail requests were broad and unfocused.
III. Recent Developments.
In June 1996, the Colorado General Assembly enacted comprehensive revisions of its statutes to address the issue of access to and preservation of government e-mail. The General Assembly amended three statutes: (1) Colorado's Open Records Act (the Colorado equivalent to Michigan's FOIA), making government e-mail generally available to the public, subject to certain qualifications;(7) (2) Colorado's Open Meetings Law, amending the the definition of "meetings" subject to the act to include any kind of gathering convened to discuss public business electronically and, in addition, making e-mail used by elected officials to discuss pending legislation or other public business subject to the Open Meetings Law;(8) and (3) Colorado's State Archives and Public Records Act, ct, excluding e-mail from the definition of "records" that are subject to the preservation requirements of that law, "unless the recipient has previously segregated and stored such messages as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the value of the official governmental data contained therein."(9)
The General Assembly made the following legislative declaration to accompany the amendments:
The general assembly hereby finds and declares that the use of electronic mail by agencies, officials, and employees of state government creates unique circumstances. Electronic mail shares some features with telephonic communication, which generally is not stored in any form and is generally regarded as private. However, electronic mail differs in that it creates an electronic record that may be used or retrieved in electronic or paper format. The use of electronic mail is becoming more common and more important in facilitating the ability of government officials to gather information and communicate with their staff, other officials and agencies, and the public. However, individual officials are not equipped to act as official custodians of such communications and to determine whether or not the communications might be public records. For these reasons, this act is intended to balance the privacy interests and practical limitations of public officials and employees with the public policy interests in access to government information.
With regard to the e-mail amendments to Colorado's Open Records Act, first, the General Assembly enacted a broad definition of "electronic mail" as "an electronic message that is transmitted between two or more computers . . . whether or not the message is converted to hard copy format after receipt or stored for later retrieval."(10) The definitions of "correspondence" and "writing" were also amended to include communications sent via electronic mail(11) and "digitally stored data, including without limitation ion electronic mail messages."(12) Second, while the definition of "public records" includes des correspondence and writings, an express exemption is made for "public records" that constitute "work product prepared for elected officials," defined as:
[A]ll intra- and inter-agency advisory or deliberative materials assembled for the benefit of elected officials, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials in reaching a decision within the scope of their authority.(13)
Section 24-72-203 is a general disclosure provision that makes all public records open for inspection by any person, subject to a number of privacy, law enforcement, and security exceptions that in the main track those in M.C.L. § 15.243. However, Colorado includes an exemption not found in the Michigan FOIA for requests that seek "the specific details of bona fide research projects being conducted by a state institution . . . ."(14)
Section 24-72-204.5 directs all state agencies and local governments that operate an electronic mail communications system to adopt a written policy within one year on any monitoring of e-mail communications and the circumstances under which it will be conducted.
Finally, there is no requirement that e-mail messages be stored, only that if they are stored that they be made available, subject to the exceptions mentioned.
1. Regarding amendments to FOIA, the Michigan Law Revision Commission believes that government e-mail should generally be subject to FOIA disclosure. The Commission therefore recommends to the Legislature that it amend FOIA and expressly make e-mail subject to FOIA disclosure. However, the Commission further recommends that the Legislature postpone enacting this amendment until after the Legislature and the Commission have both carefully considered what exemptions from disclosure, if any, are necessary and should be included with the e-mail amendment.
With the caveat concerning exemptions from disclosure in mind, the Commission makes the following recommendations to the Legislature:
A. Add the following definition of "electronic mail" to the definitions section of FOIA, M.C.L. § 15.232:
"Electronic mail" means an electronic message that is transmitted between two or more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network.
B. Amend the definition of "writing," M.C.L. § 15.232(e), by adding the following sentence:
"Writing" includes digitally stored data, including, without limitation, electronic mail messages.
During the coming year, the Commission will focus its attention on what types of e-mail should be exempt from FOIA requests. Among the areas the Commission will consider are (1) student-to-student e-mail, (2) student-to-third party e-mail, (3) advisory or deliberative materials used to assist elected officials in reaching decisions, and (4) computer programs and software. The Commission notes that in 1994 the Legislature enacted the Confidential Research Information Act, M.C.L. §§ 390.1551-390.1557, which exempts from FOIA disclosure various kinds of intellectual property and commercial information used in research activities at state universities and colleges.
2. Regarding amendments to the Management and Budget Act that might make e-mail subject to the maintenance and preservation provisions of that Act, the Commission believes that a general requirement that all e-mail be preserved would place an undue burden on state agencies. Accordingly, the Michigan Law Revision Commission recommends to the Legislature that it amend M.C.L. § 18.1284(b) by adding the following sentence to the definition of "record" contained therein:
Records shall not include electronic mail messages, regardless of whether such messages are produced or stored using state-owned equipment or software, unless such messages are segregated and stored by a state agency as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government, or because of the value of the official governmental data contained therein.
(1) Michigan Law Revision Commission, 29TH ANNUAL REPORT (1994). The study report was authored by Professor Kent Syverud of the University of Michigan Law School and former Executive Secretary of the Law Revision Commission, and Mr. Daniel F. Hunter, a student assistant to Professor Syverud and currently a practicing attorney in New York City.
(2) 29TH ANNUAL REPORT, at 7.
In other developments related to public disclosure of government activity, former Senator David Honigman introduced a bill earlier this year, S.B. 877, that would make any agreement to settle a lawsuit against government entities or officials void as contrary public policy if such settlement includes a prohibition on the disclosure of the agreement's provisions. House Bills 5832 and 5726 were also passed by the House in 1996. H.B. 5832 would create a new act entitled, Enhanced Access to Public Records Act, which would allow local and state government agencies to provide electronic access for the inspection and copying of public records which are not confidential or otherwise exempt from disclosure. H.B. 5726 would amend FOIA to allow for electronic access to government information. See also H.B. 5087 (1991), a bill to enact the Michigan Fair Information Practices Act that would have imposed certain duties upon state agencies to keep private and confidential data, whether in computer form or otherwise, relating to individuals.
(3) Id.
(4) See M.C.L. § 15.232(c) & (e).
(5) M.C.L. § 15.243(1)(n).
(6) Ms. Cole's proposals can be found in her letter to the Commission, reproduced in 29TH ANNUAL REPORT, MICHIGAN LAW REVISION COMMISSION, Appendix 4a, at 89-90.
(7) COLO. REV. STAT. ANN. §§ 24-72-202--204.5.
(8) COLO. REV. STAT. ANN. § 24-6-402(1)(b) & (2)(d)(III).
(9) COLO. REV. STAT. ANN. § 24-80-101(1)(f).
(10) Id. § 24-72-202(1.2).
(11) Id. § 24-72-202(1)(c).
(12) Id. § 24-72-202(7).
(13) Id. § 24-72-202(6.5). Work product is further defined to include notes and memoranda that serve as background information, preliminary drafts of documents that express a decision by an elected official, draft bills and amendments, and all research projects prepared at the request of a legislator in connection with pending legislation.
(14) Id. § 24-72-204(2)(a)(III).