I notified Manager Steve Feller and cc'ed Solicitor Phi Weis of the Commonwealth of PA ruling.
Commonwealth Court has ruled that emails sent between borough council members using their personal computers and regarding council business are subject to public disclosure under Pennsylvania's Right-to-Know Law.
A unanimous three-judge panel affirmed in part, and reversed in part, a ruling by the Venango County Common Pleas Court, which had upheld a decision by the state's Office of Open Records, ordering Barkeyville Borough to turn over emails contained on borough council members' personal computers to the person who requested them.
Commonwealth Court agreed with the trial court's and Office of Open Records' reasoning regarding the emails, but disagreed with the trial court's awarding of attorney fees to the requester.
The open records office had reasoned in its determination that while the emails were not contained on borough computers, the borough still controlled the emails.
The Commonwealth Court, led by Judge P. Kevin Brobson, agreed with this reasoning.
One more quote from the article that I should point out:
"If this court allowed council members to conduct business through personal e-mail accounts to evade the ["right-to-know" law], the law would serve no function and would result in all public officials conducting public business via personal email," Judge Brobson wrote.This should be very interesting.
Council emails are public business; personal computer emails not exempt
Update January 31, 2012 3:03 pm I updated lebocitizens.com to include this article as well as links to the municipality's forms and procedures for filing Right To Know requests. http://lebocitizens.com/Lebo_Citizens/Right_to_Know.html
9 comments:
That's good news for your request, Elaine. I'm not sure how they deny it in the face of this...Oh, my, there are surely a few folks in our lovely, bucolic hamlet sweating profusely. And that makes me smile.
Yay! This is yet another victory for transparency!
The next step would be to ban officials' cell phone use during meetings. All cell phones should be turned off and in pockets or purses. Texting by officials during meetings raises suspicion and it's rude, too.
All elected public officials should be willing to let residents witness honest deliberation.
Carole Brown
Someone should request Ed Kubit's emails sent to directors' home computers. Ed's email, calling an executive session, to discipline Mr. Fraasch for having his own opinions, resulted in a Mom being sued by the district's solicitors office. The Mom had to get an attorney to help her defend her case.
The suit was later settled when a representative of the solicitor's office communicated with the Mom and told her how to withdraw from the case. You will have to decide for yourself if the solicitor's office, that represents the district, had a conflict of interest in advising the Mom to settle the case.
At any rate, based upon this Commonwealth Court ruling, it appears to this observer that the solicitor gave bad advice to the school board when the case was litigated. Add to that the two zoning cases the solicitor's office has lost and it appears that three cases should not have been litigated by the solicitor's office.
The solicitor serves at the will of the board and can be replaced at any time of the year. Perhaps the board should consider replacing the solicitor or at least have the decency to ask the solicitor refund the district's legal fees in these three cases.
John Ewing
There's one problem with this. If the concerned parties delete the mails (and dump their "trash" folder) and they're using a 3rd party service such as Hotmail or Gmail, the mails are almost impossible to recover. You would most likely need a court issued warrant to get it (and even then, you may not get the mail if it's older than a certain period of time).
Home e-mail is usually a free service and is very limited in the amount of recovery that you can do.
As a hypothetical example, if SB member #1 sends a personal email using gmail to SB member #2 saying "Don't worry about any variances related to the project, I got the 8x10's on them and they'll give in no problem. See you at the groundbreaking." and both of them delete the mail, it's gone. If, say someone hears a rumor that a mail was sent between the two and you put a right to know request in, there's no way for the SB members to recover that mail. They can both deny it existed and you'd have no way to prove it did.
Government mails have to be recoverable for a certain period of time. Personal mails do not. This isn't to say they're not going to use their personal mails for business - they are. It's to say that this legal judgement will be almost impossible to enforce.
Yes, Jack, you're right. But what does that say about the elected officials? I wonder how many RTKs were filed with the SB and got the answer that there were no emails. From what I understand, the mom who was sued was not told that there were no emails available. She was just flat out denied access to personal emails.
Elaine
Or they could just avoid the entire situation of being faced with a warrant by not engaging in actions that result in the warrant being issued.
Welcome, Jill. Thanks for your comment. I agree with you 100%!
Before I get criticized for publishing your comment with just your first name, next time please sign your full name. Thanks.
Elaine
I signed oly my first name because you posted a comment from Jack with only his first name...
Jill, I know Jack. Oh I get it now. Jack and Jill. Really?
Elaine
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