Florida, Maryland decide e-mail messages are public records

ROUNDUP–A pair of attorney general opinions issued in Maryland and Florida in May have declared that e-mail messages are public records subject to disclosure.

In Maryland, Attorney General Joseph Curran responded in late May to two questions concerning e-mail: first, does the Maryland Open Meetings Act prohibit e-mail communications among a quorum of members of a public body, and second, does the Maryland Public Information Act apply to e-mail communications?

The Attorney General found that the Open Meetings Act does not apply to e-mail communications among members of a public body, unless a quorum of a public body is engaged in a simultaneous exchange of e- mail on a matter of public business.

Curran reasoned that the act does not apply to forms of interchange among members of a public body that do not amount to “convening” — the assembly that characterizes a quorum, and that sequential exchange were substantively “indistinguishable from letters or memoranda.”

Curran also found that an e-mail message sent between government officials “surely falls within [the] definition” of public records under the Public Information Act. “[E]ven if the message was never printed, the version of the e-mail message retained in the computer’s storage would also be a `public record,'” Mr. Curran opined.

Florida Attorney General Robert Butterworth issued a similar opinion in mid-May.

The Sarasota County Property Appraiser had asked for an opinion on whether e-mail messages made or received by the employees of the appraiser’s office or to other governmental agencies were “public records” under the law, and whether, and for how long and in what form such messages must be saved.

Butterworth responded that the e-mail messages in question are public records, subject to statutory restrictions on destruction. Those restrictions require agencies to adopt a schedule for the disposal of records no longer needed, subject to the approval of the Division of Library and Information Services of the Department of State.

Citing a 1982 Florida Supreme Court opinion, the state’s attorney found “there can be no doubt that information stored on a computer is as much a public record as a written page in a book.” In addition, a 1995 law expanding the definition of public records to include any official records regardless of the means of transmission showed an intent to include computerized information under the records act, the Attorney General found. (Op. Md. Atty’ Gen. No. 96-016; Op. Fla. Atty. Gen. No. 96-34)