Issuu on Google+

E-mail and the Public Records Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


Nebraska Public Records Act  Basic statute Neb. Rev. Stat. § 84-712  In effect since 1866 • Amended to allow for copies • Amended to provide for electronic data  Premise: the public gets records


Hyannis AG Disposition Letter  Patron demanded from superintendent: [A] copy of all e-mails sent by to you to any individual Board Member or all Dist. #11 Area Board Members and also any emails received by you from all or any individual Dist. #11 Area Board Members dating back to October 1, 2006 up to and including February 9, 2007


Hyannis AG Disposition Letter  Superintendent responded • Individual e-mails not public • E-mails to all might be public • ESU 16 will search and charge $400 • Searched his own sent items and provided copies of e-mail sent to all board members


Hyannis AG Disposition Letter  Patron filed complaint with AG  AG: • Fee for searching permissible • Individual e-mails are public if discussing school business • Board members have to search personal e-mail accounts and personal computers and produce


What Does the Statute Require?


Who Is Entitled to Access?  All citizens of this state  All other persons interested in the examination of the public records  No explanation of the reason required  Section 84-712 applies equally to all persons, without regard to the purpose for which the information is sought. (State ex rel. Sileven v. Spire, 243 Neb. 451, 500 N.W.2d 179 (1993))


What is a “public record?”  Neb. Rev. Stat. § 84-712.01: “all records and documents, regardless of physical form, of or belonging to the [school district].” • Can include e-mail • The same rules apply to electronic data as apply to paper records


“Belonging to the state”  Records "of" or "belonging to" state agencies under § 84-712.01 are those records "owned" by the agencies or those records for which the state agencies possess title or an ownership interest.  The mere fact that a record is in the possession of a public officer or a public agency does not make it a public record.  Op. Att'y Gen. No. 97033 (June 8, 1997).


Email as Public Record • Records “of” or “belonging to” state agencies are those records “owned” by the agencies or records for which the state has title or ownership interest • E-mails in your possession can be public records – even if they are on your home email and computer…


When Emails Aren’t PR • The mere fact that a record is in the possession of a public officer or a public agency does not make it a public record. • Purely personal emails might not be public records depending upon your policy or negotiated agreement


De Minimus Use • 49-14,101.03: permits minimal use of public resources if ▪ The personal use is part of compensation provided in employment contract or policy AND ▪ The personal use as compensation is reported to IRS


OPS Situation • Not all state public records statutes are the same • Things can be strange in Omaha • Not yet a current employee • Lessons ▪ Know your policy ▪ Don’t surprise board members


E-mail and the Public Records Law Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


ESU 15 & 16 e-mail and public records