b. E-mail

Use of electronic communication to circumvent the requirement of open government is a violation of the Alabama Open Meetings Act. Ala. Code § 36-25A-1 ("[E]lectronic communications shall not be utilized to circumvent any of the provisions of this chapter.").

The Open Meetings Act does not address expressly conducting "meetings" by e-mail. The use of e-mail by members of a governmental body to communicate among themselves would seem to raise two issues. The first would be whether the public has a right of access to these communications under the public records law, and the answer would seem clearly to be yes. Whether such communications would constitute a "meeting" under the OMA, which by definition would then require "reasonable public notice," is more problematic. However, where a governmental body employs e-mail to conduct its business in a way that is functionally equivalent to an actual meeting, and particularly where computer technology is used in essentially the same fashion as a video or audio teleconference, then it may be reasonable to subject such a "meeting," where the members are "virtually present," to the requirements of the OMA.

Courts have shown a willingness to find violations of the OMA in circumstances that, on their face, may not constitute a violation, where the purpose or effect of the activity is to circumvent the open meetings act. Giving reasonable public notice of such meetings will ensure that interested parties and other members of the public will have the opportunity to participate, either at the time, or by checking the electronic record of these communications afterwards. Implicit in this is the assumption that the notice stating the "place of the meeting" would provide an internet address or other means of accessing the electronic communications being exchanged. It is also reasonably arguable that if a public body is to conduct business in this manner, it must provide a public terminal or other similar means of access to members of the public who may not otherwise have a reasonable access to gatherings in cyberspace.

Whether e-mail communications should and will be treated as "meetings," rather than simply as records, and if so how notice, public attendance, and similar matters will be addressed in this context, are issues that will presumably be worked out by experience over time, perhaps aided by judicial interpretations. It seems clear, however, that if members of governmental bodies use e-mail to conduct business at all, the use of this forum must be approached cautiously given the obvious difficulties in affording the public access to a process that can so readily be conducted with no meaningful public notice, participation, or awareness. In at least one case, the superior court found that members of a state board had violated the open meetings act through their use of e-mail, but the Supreme Court did not squarely address the issue on appeal. "Assuming that the trial court was correct in finding that some of the (Redistricting) Board members' e-mail exchanges violated the OMA, we agree with the trial court that no remedy is appropriate. We hold that the superior court properly concluded that, based on the factors set out in AS 44.62.310(f), "the public interest[] in requiring compliance with the Open Meetings Act does not outweigh the harm that would be caused to the public interest by voiding the entire Redistricting Plan on this basis. Because we hold that the superior court permissibly refused to grant any remedy for the particular e-mail exchanges it found to violate the Open Meetings Act, we need not address whether those e-mail exchanges actually violated the Act." In re: 2001 Redistricting Plan, 44 P.3d 141, 147 (Alaska 2002).

“When members of the public body are parties to an exchange of e-mail communications that involve discussions, deliberations or taking legal action by a quorum of the public body concerning a matter that may foreseeably come before the public body for action, the communications constitute a meeting through technological devices under the OML.”  Ariz. Att’y Gen. Op. I05-004.

An exchange of e-mail messages or faxes is not a meeting, since these activities are analogous to written correspondence. Ark. Op. Att’y Gen. Nos. 2000-096, 99-018. However, a real-time, interactive communication via a local network or the Internet, including “sequential or circular” e-mails, could probably constitute a meeting for FOIA purposes. Ark. Op. Att’y Gen. Nos. 2008-055, 2005-166. Such a “virtual” meeting is analogous to a telephone conference call, not to written correspondence. To comply with the FOIA, the governing body would be required to allow the public to monitor the electronic discussion, e.g., by logging on to the computer network. Ark. Op. Att’y Gen. No. 2000-096.

The Bagley-Keene Act and the Brown Act prohibit the bodies from circumventing the open meeting requirements by using e-mail, telephones, letters or surrogates to conduct serial discussions about the public's business. See Cal. Gov’t Code §§ 11122.5(b)(2) (Bagley-Keene Act), 54952.2(b)(1) (Brown Act).

Electronic Mail. If elected officials use electronic mail to discuss pending legislation or other public business among themselves, the electronic mail shall be subject to the above requirements. Colo. Rev. Stat. § 24-6-402(2)(d)(III). However, electronic mail communication among elected officials that does not relate to pending legislation or other public business shall not be considered a "meeting" and therefore is not subject to the above requirements.

There are also no reported court decisions on this issue, but see Evans v. Freedom of Info. Comm’n, 2005 Conn. Super. LEXIS 2116 (discussing possible email meeting).

An exchange of e-mail between members of a public body discussing public business constitutes a meeting subject to the FOIA laws. Del. Op. Att’y Gen., No. 03-ib11 (May 19, 2003).

The Act contains a specific exemption for e-mail exchanges.  It states that e-mail exchanges "shall not constitute an electronic meeting."  D.C. Code Ann. § 2-577(c).

E-mail is subject to the Sunshine Law if the communication is used to conduct public business.  A January 2009 Final Report by the Commission on Open Government Reform stated that “the use of private computers and personal e-mail accounts to conduct public business does not alter the public’s right of access to the public records maintained by those computers or transmitted by such accounts.”  However, an e-mail from one council member to another is not subject to the Sunshine Law where it merely communicates factual information and does not result in the exchange of council members’ comments or responses on subjects requiring council action.  Op. Att’y Gen. 2001-20 (2001).

In Sarasota Citizens for Responsible Government v. City of Sarasota, 48 So. 3d 755 (Fla. 2010), the Florida Supreme Court ruled that the City of Sarasota did not violate the Sunshine Law in connection with e‑mail discussions that took place during bond validation efforts.  Any violations of the Sunshine Law committed in e-mail discussions were cured by the holding of public meetings.

The Act does not apply to “e-mail communications among members of an agency.” O.C.G.A. § 50-14-3(a)(7). But such communications are subject to disclosure under the Open Records Act. Id.

The OIP has recognized that e-mail use by governmental agencies is widespread and has become an acceptable method of communication. Electronic Transmission of Testimony; Identification of Testimony Received By Boards, OIP Op. Ltr. No. 03-06 (May 2, 2003). However, under the Sunshine Law, board members are not authorized to vote via e-mail concerning matters over which the board has supervision, control, jurisdiction or advisory power and that are before or are reasonably expected to come before the board. Board Members Discussion of Official Business Outside of a Duly Noticed Meeting, OIP Op. Ltr. No. 04-01 (January 13, 2004). Electronic communications cannot be used to circumvent the spirit or requirements of the Sunshine Law or to make a decision upon a matter concerning official business via e-mail. Haw. Rev. Stat. § 92-5(b).

E-mail is not addressed in the Open Meeting Law. Such communications are, however, public records and should be available for inspection unless exempted under the open record statutes.

Electronic mail constitutes a “meeting” for purposes of the Act. See 5 ILCS 120/1.02.

Except in its discussion of serial meetings, Ind. Code § 5-14-1.5-3.1, the Open Door Law does not address e-mail. In its discussion of serial meetings, the Open Door Law specifically exempts e-mail as a “gathering” or “meeting.”  Ind. Code § 5-14-1.5-3.1(b).

The Indiana Public Counselor Handbook addresses the question of whether email exchanges are meetings and states the following: “[w]hether an email exchange is considered a meeting is largely dependent upon the nature and intent of the communication. If the governing body is trying to communicate simultaneously and expecting an immediate call-and-response type dialogue for the purpose of taking official action on business, the exchange constitutes a meeting.” The Handbook is available at the following link: https://www.in.gov/pac/files/PAC%20Handbook%202017.pdf.

A “meeting” under Iowa Code § 21.2(2) encompasses all gatherings, formal or informal, where a majority of the members deliberate or take action within the scope of their policy-making duties.  See Op. Atty. Gen. (Pellett) May 16, 1979. In Hutchison v. Shull, the Iowa Supreme Court held that a meeting can occur even if a majority of the board or council members are not physically or electronically present if instead, a majority of the board members are present either personally or through an agent. 878 N.W.2d 221, 234 (Iowa 2016). The requirements of open meetings law applies if the majority of board or council members gather either in-person, electronically, or through agents to deliberate any matter within the scope of its policy-making duties. Id.; see also Fleener v. City of Oskaloosa, No. 09-0230, 2009 WL 4115658, at *4 (Iowa Ct. App. Nov. 25, 2009) (rejecting plaintiff’s argument that separate phone and email contacts “amounted to serial communications resulting in deliberation, such that a meeting occurred”).

E-mail alone is not considered "interactive communication." Kan. Att’y Gen. Op. 1995-13. Interactive communication does not occur when a non-member of a body or agency communicates with a majority of that body or agency board and a member responds and shares the response with other members. Further interactive communications among a majority of the members concerning the business of the body where there is an intent to reach agreement on a matter that would require binding action are subject to KOMA. Kan. Att’y Gen. Op. 2009-22.  However, “it is better not to forward the original communication with comments.”  Id.

The Open Meetings Act does not provide for e-mail meetings. See 17-OMD-165.

The statute does not specify, but the rationale of Op. Att’y Gen 93-137— that telephone polls of members of a public body may not be used to thwart the Open Meeting Law— would seem to apply.

According to the Office of the Attorney General e-mail used as a substitute for public deliberation among a quorum of members of a body violates the Act:

E-mail or other communication among a quorum of the members of a body that is used as a substitute for deliberations or decisions which should properly take place at a public meeting may likely be considered a “meeting” in violation of the statutory requirements for open meetings and public notice. “Public proceedings” are defined in part as “the transactions of any functions affecting any or all citizens of the State…” 1 M.R.S. § 402 The underlying purpose of the FOAA is that public proceedings be conducted openly and that deliberations and actions be taken openly; clandestine meetings should not be used to defeat the purpose of the law. 1 M.R.S. § 401 Public proceedings must be conducted in public and any person must be permitted to attend and observe the body’s proceeding although executive sessions are permitted under certain circumstances. 1 M.R.S. § 403 In addition, public notice must be given for a public proceeding if the proceeding is a meeting of a body or agency consisting of 3 or more persons. 1 M.R.S. § 406.

The Maine Office of the Attorney General concludes, “Members of a body should refrain from the use of e-mail as a substitute for deliberating or deciding substantive matters properly confined to public proceedings.”  See http://www.maine.gov/foaa/faq/.

There is a new law, effective July 30, 2021, that codifies the Office of the Attorney General’s position on this issue.  1 M.R.S. §403-B (2021). The law expressly prohibits “the conducting of public proceedings by text-only means, including but not limited to e-mail, text messages, and chat functions.” Id. (emphasis added).

The Act does not address communication that may occur via e-mail. As discussed in the OMA Manual, while sequential e-mail communications, to the extent they can be analogized to an exchange of information via regular mail, are not subject to the Act, an online discussion in which a quorum of a public body participates on a “near-simultaneous basis” could be construed to be a “meeting” under the Act.  OMA Manual, at 1-10. The OMCB has opined on the factors a court would likely consider in addressing whether an e-mail exchange was a “meeting,” including the number of participants involved, the number of communications, the time frame within which the communications occurred, and the extent the communications reflected “conversation-like interactions.” 9 OMCB Opinions 259, 265 (2015).

An email is a "written communication." If sent to a quorum of a public body and addressing a matter of "public business within its jurisdiction," the email constitutes a prohibited deliberation under the law – even if the sender’s email does not ask the recipients to respond. G.L. c. 30A, § 18; “Open Meeting Law Guide” (Att’y Gen’l, Jan. 2018), at 7, https://www.mass.gov/files/documents/2018/11/15/2017%20Guide%20with%20ed%20materials_revised%201-30-18.pdf. Thus, for example, a city council member violated the Open Meeting Law when he sent an email to a quorum of his fellow council members asking whether they support a special election for a ballot question, because his act could have resulted in the council “making policy decisions outside of a public meeting.” Burke/Methuen City Council, OML 2011-35 (Att’y Gen’l, Aug 22, 2011).
An email is not a prohibited “deliberation,” however, if both of the following two conditions are met: (1) it serves merely as the vehicle for distributing a “meeting agenda, scheduling information,” other procedural matter, or “reports or documents that may be discussed at a meeting”; and (2) “no opinion of a member is expressed” in the email. G.L. c. 30A, § 18 (definition of “deliberation”).
Additionally, an email – like any other written or oral communication -- is not a prohibited “deliberation” if the communication is confined to less than a quorum of the public body. G.L. c. 30A, § 18; “Open Meeting Law Guide” (Att’y Gen’l, July 1, 2010), at 6–7, https://www.mass.gov/files/documents/2018/11/15/2017%20Guide%20with%20ed%20materials_revised%201-30-18.pdf. If, however, there are multiple email communications among the members of the public body, and if those communications, taken as a whole, involve a quorum of members, then a “deliberation” has probably occurred. Id.

Email exchanges involving a quorum of members may constitute a “meeting” so long as the other requirements for a meeting are met. Markel v. Mackley, No. 327617, 2016 WL 6495941, at *1 (Mich. Ct. App. Nov. 1, 2016).

An exchange of emails in which a quorum of the government body expresses opinions and provides direction amounts to a “virtual meeting” in violation of the Open Meeting Law. Minn. Comm’r Admin. Op. No. 09-020 (Sept. 8, 2009). That Advisory Opinion noted: “It seems reasonable that one-way communication between the chair and members of a public body is permissible, such as when the chair or staff sends meeting materials via email to all board members, as long as no discussion or decision-making ensues. The Commissioner urges the Legislature to provide guidance in the OML on issues arising from the widespread use of email and other forms of communication. It would be helpful to clarify specifically what kinds of email communications are permissible.”

Proposed legislation to allow e-mail meetings or to provide further guidance has not been passed by the Minnesota Legislature.

No specific reference in the Act, but presumably covered by § 25-41-3(b).

The definition of public meeting includes meeting conducted by communication equipment. Mo.Rev.Stat. § 610.010(5). The notice for meetings conducted by telephone or other electronic means must include the mode by which the meeting will be conducted and a location where the public can observe and attend. Mo.Rev.Stat. § 610.020.1.

Since electronic discussion during the convening of a quorum of a public body constitutes a meeting, it is prohibited unless the public has contemporaneous access to the e-mail message.

No law, but Neb. Rev. Stat, §84-1411(5) (Cum. Supp. 2017) allows emergency meetings by "electronic . . . equipment."

Email communications that are used by a quorum of the members of a public body to deliberate towards a decision or that are used to poll members of a public body are likely covered by the law. See also, Del Papa v. Board of Regents, 956 P.2d 770, 114 Nev. 388, 956 P.2d 770 (2000).

No. See RSA 91-A:2,III.

Any gathering by means of communication equipment, which satisfies the other requirements of N.J.S.A. 10:4-8b constitutes a “meeting” under OPMA.

There is no statutory or case law addressing this issue.

Not addressed.

E-mail is not expressly addressed in the Open Meetings Law but would fall within the definition of a public record, which includes any “documents, papers, letters, . . . regardless of physical form or characteristics.” G.S. § 132-1(a).

Simultaneous communication between a quorum of a governing body through e-mail may be considered a meeting subject to the open meetings law. See N.D. Op. Att’y Gen. 2007-O-14 (2007) (opining that an e-mail exchange constituted a “meeting”).

The statute requires a public body's members to be physically present to vote to be considered present, and for the purpose of determining the presence of a quorum. Therefore, prearranged e-mail discussions among a majority of a public body's members would not be effective for conducting voting or conducting official business. The apparent intent of the statute is to prohibit such prearranged discussions from occurring outside public view or hearing. Ohio Rev. Code § 121.22(C).

The Supreme Court of Ohio has stated, “R.C. 121.22 prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by e-mail, text, tweet, or other form of communication.” White v. King, 147 Ohio St. 3d 74, 78, 60 N.E.3d 1234, 1238, 2016-Ohio-2770, ¶ 15; See also State ex rel. Cincinnati Post v. City of Cincinnati Post v. City of Cincinnati, 76 Ohio St. 3d 540, 668 N.E.2d 903 (1996) (prearranged seriatim, repetitive face-to-face meetings of less than a majority of a city council's members had to be open as a "meeting" where a majority of council attended when the sessions were considered together).

Electronic mail transmittals are likely to be subject to the public inspection and copying under the open records statute. Ohio Rev. Code § 149.43.

No electronic or telephonic communications, except for videoconferences specifically allowed in 25 O.S. § 307.1, among a majority of the members of a public body shall be used to decide any action or take any vote. 25 O.S. § 306.

If a quorum of a governing body is e-mailing about a decision or using email to deliberate toward a decision, the Public Meetings Law applies. Notice and an opportunity for the public to listen and “attend” would be required. ORS 192.670(2).

In Handy v. Lane, the Oregon Supreme Court assumed, without deciding, that the Oregon Court of Appeals “correctly held that a quorum of a public body can ‘meet’ by means of seriatim communications if each member of the quorum communicates with the other members for the purpose of deciding or deliberating toward a decision.” 360 Or. 605, 623 (2016), affirming in part and reversing in part Handy v. Lane, 274 Or. App. 644 (2015).

Non-public deliberations by e-mail would likely violate the Act unless the deliberations met an exemption. See Babac v. Pa. Milk Mktg. Bd., 613 A.2d 551 (Pa. 1992). On the other hand, pre-deliberation communications or “discussions” probably would be lawful. Thus, a court would have to be convinced that “deliberations” — as opposed to mere “discussions” or “drafting” — actually occurred before it could find a violation.

While no provision of the OML attempts to regulate electronic meetings (i.e., conference calls, e-mail), the OML does expressly prohibit the use of electronic communication to circumvent the spirit or requirements of the OML. R.I. Gen. Laws § 42-46-5(b).  Discussions of a public body visa electronic communication shall be permitted only to schedule meetings.  R.I. Gen. Laws § 42-46-5(b)(1).

Subject to the act.

Presumably open. Teleconference defined at SDCL §1-25-1.2 to include exchange of information by audio or video medium. Arguably, reading electronic messages is application of “video” medium.

Under T.C.A. § 8-44-109, a governing body may allow members to communicate by means of a forum over the Internet if this forum is at all times available to the public (other than for reasons of technical maintenance or unforeseeable technical limitations). Such postings on a forum shall not be a substitute to decision making by a governing body in a meeting held under the Act. Unless the provisions of this section are followed, emails between members of a governing body will violate the Act. Johnston v. Metro Gov’t of Nashville and Davidson County, 2009 Tenn. App. LEXIS 832 (Tenn. Ct. App. Dec. 10, 2009) (emails discussing proposed zoning changes violated Act.)

The Act does not specifically address the treatment of e-mail. However, the Attorney General has stated that electronic mail exchanges can be included in the Act's definition of deliberation. Tex. Att’y Gen. Op.JC-0307 (refusing to follow Texas case law which limited a "meeting" under the Act as an exchange of spoken words); see also Asgeirsson v. Abbott, 773 F. Supp. 2d 684(W.D. Tex. 2011), aff'd, 696 F.3d 454 (5th Cir. 2012) (council member accused of violating the Act by exchanging emails among a quorum of council members to schedule a council meeting).

E-mail may qualify as an “electronic meeting” that is “convened or conducted by means of a conference using electronic communications.” See Utah Code § 52-4-103(4)-(5).

In 2014, the Vermont legislature amended the Open Meeting Law to exclude from the definition of meeting “any communication, including in person or through e-mail, telephone, or teleconferencing, between members of a public body for the purpose of scheduling a meeting, organizing an agenda, or distributing materials to discuss at a meeting, provided that: (i) no other business of the public body is discussed or conducted; and (ii) such a communication that results in written or recorded information shall be available for inspection and copying under the Public Records Act.”  1 V.S.A. § 310(3)(B).  The Vermont Supreme Court recently held that “[i]t is clear in reading the earlier and amended legislative enactments together that the Legislature did not intend for the term ‘meeting’ to encompass the distribution by email of information for discussion at meetings.”  Burch-Clay v. Taylor, 2015 VT 110, ¶ 19, 130 A.3d 180, 187 (Vt. 2015).

Physical presence is required for all non-electronic meetings. The statute governing electronic meetings provides that the voices of remote participants must be heard by the public, eliminating by implication the use of email for meetings. Email is a “record” under the Act.  See also Beck v. Shelton, 267 Va. 482, 492, 593 S.E.2d 195, 200 (2004) (determining that e-mail communications at issue did not constitute a "meeting" under FOIA).

The exchange of e-mail messages may constitute a meeting within the meaning of the Open Public Meetings Act provided a majority of the governing body is involved and the use of e-mail is not merely informational or passive receipt of e-mail. Wood v. Battleground Sch. Dist., 107 Wn. App. 550, 27 P.3d 1208 (2001).

There have been no reported meetings conducted via computer, whether by way of an online chat or through e-mail.

“The widespread use of electronic mail and other electronic message technologies creates special dangers for governmental officials trying to comply with the open meetings law. Although two members of a governmental body larger than four members may discuss the body’s business without violating the open meetings law, features like ‘forward’ and ‘reply to all’ common in electronic mail programs deprive a sender of control over the number and identity of the recipients who eventually may have access to the sender’s message. Moreover, because of electronic mail communication, it is quite possible that a quorum of a governmental body may receive the sender’s message — and therefore may receive information on a subject within the body’s jurisdiction — in an almost real-time basis, the way they would receive it in a meeting of the body. Although no Wisconsin court has applied the open meetings law to electronic mail communications, it is likely that the courts will try to determine whether electronic communication is more like written correspondence which does not raise open meetings law concerns, or more like conversation, which does raise those concerns. Courts are likely to consider the following factors: (1) the number of participants involved in the communication; (2) the number of communications regarding the subject; (3) a time frame within which the electronic communications occurred; and (4) the extent of the conversation-like interactions reflected in the communications. Inadvertent violations of the open meetings law through the use of electronic communications can be reduced if electronic mail is used principally to transmit information one-way to a body’s membership; if the originator of the message reminds recipients to reply only to the originator, if at all; and if message recipients are scrupulous about minimizing the content and distribution of their replies.” 2005 Wisc. AG LEXIS 29, 2–4 (Wisc. AG 2005).