Agenda Item - 2001-04-09 CITY OF LAKE OSWEGO
AGENDA REPORT SUMMARY
MEETING DATE: April 9, 2001
SUBJECT: City Council E-mail Communications — Public Records Law
RECOMMENDED MOTION:
None. This item is for information only.
r EST. FISCAL ATTACHMENTS: NOTICED (Date):
IMPACT:
• Powell memo of
March 19, 2001
STAFF COST: $
Ordinance no.:
BUDGETED:
Y N Resolution no.:
FUNDING SOURCE:
Previous Council
consideration:
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CITY ATTORNEY ASST. CITY MANAGER CITY ANAGER
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LAKE DS �CO City Attorney's Office
Council Report
OREGO$
To: Judie Hammerstad, Mayor
Members of Lake Oswego City Council
Doug Schmitz, City Manager
From: David D. Powell, City Attorney
Subject: City Council E-mail Communications—Public Records Law
Date: March 19, 2001
The purpose of this report is to outline the basics of public records law relating to e-mail
communications by the City Council.
Three separate considerations arise with respect to any particular e-mail communication:
(1) Is the e-mail communication a public record?
(2) If so, how long must the record be retained?
(3) When must the public record be disclosed?
1. E-mail Communications as Public Records
A public record includes any document, writing,photograph, recording, etc., including a
"machine readable electronic record,"that is made, received, filed or recorded in connection with
the transaction of public business, regardless of whether the communication is confidential or
not.' Virtually any e-mail communication by a Council member relating to city matters would
be considered a public record. Even seemingly trivial communications (transmittals,
acknowledgements, thank you notes, etc.) are public records if they relate to city business.
2. Retention of E-mail Public Records
State law grants the State Archivist the authority to adopt rules for the retention or destruction of
public records.2 So long as Council members send copies of all e-mail communications to the
city "post office,"they needn't worry about how long documents should be kept. The City
Recorder will archive any records that need to be retained.
The Council may nevertheless be interested in how these retention requirements apply to City
Council e-mail. Most of the Archivist's retention schedules pertain to the records of specific city
ORS 192.005(5);ORS 192.410(4)and(5)
2 ORS 192.105(1). - ' 39
E-mail Communications/Public Records Law
March 19, 2001
Page 2
departments. The City Council's e-mail communications typically will not be department
records3 and therefore will usually be subject to one of the following "Administrative Records"
retention requirements: 4
Ephemeral Correspondence(retain until read)
Communications of a preliminary or informational nature that do not contain
significant information about the City's programs, fiscal status, or routine city
operations. Records include advertising circulars, drafts and worksheets, desk
notes,memoranda, and other preliminary or informational records.
General Correspondence (retain 1 year)
Communications that do not contain significant information about a city's
programs (but are more than merely preliminary or informational).
Program Correspondence (retain per the appropriate city department schedule)
Communications that document and add significant information to a program or
primary functional responsibility of a city office.
Financial Correspondence (retain 2 years)
Correspondence, memoranda and similar records that add significant information
about the financial status of the city.
Policy and Historical Correspondence (retain permanently)
Correspondence,memoranda and other records that state or form the basis of
policy, set important precedents, or record historic events related to the
organization or operation of the city.
Calendars and Notes (retain 1 year)
Records documenting and facilitating routine planning, scheduling, and similar
actions relating to meetings, appointments, trips, visits, and other activities. This
applies to records that contain significant information that is not summarized or
otherwise included in reports or similar documents.
Drafts and Worksheets (retain as needed)
Records of a preliminary or working nature that do not represent significant steps
in the preparation of final copy documents.
Obviously these retention requirements also apply to public records that are not e-mail
communications.
3 Council members are often provided copies of department reports and records. However,under state law extra copies of a
document preserved for convenience of reference are not"public records"for the purposes of retention requirements. ORS
192.005(5)(d).
4 OAR 166-200-0010(5)-(10). v
E-mail Communications/Public Records Law
March 19, 2001
Page 3
3. Disclosure of Records
State law provides that citizens have the right to inspect and copy public records.5 This applies
to electronic records such as e-mail, in addition to documents in more traditional formats.6
There are dozens of exceptions to the disclosure requirement. Among them are:
> Communications within a public body or between public bodies of an advisory nature to
the extent that they cover other than purely factual materials and are preliminary to any
final agency determination of policy or action. This exception does not apply unless the
city shows that, in the particular instance, the public interest in encouraging frank
communication between officials and employees of public bodies clearly outweighs the
public interest in disclosure.?
> Information submitted to the city in confidence, not otherwise required by law to be
submitted,where such information should reasonably be considered confidential, the city
has obligated itself in good faith not to disclose the information, and when the public
interest would suffer by the disclosure.$
> Any records or information the disclosure of which is prohibited or restricted or
otherwise made confidential or privileged under Oregon law.9 (This includes attorney-
client communications).
> Records pertaining to litigation in which the city is a party, or if the city shows that such
litigation is likely to occur. This exception does not apply to litigation that has been
concluded, nor does it limit discovery rights of a party to the litigation.10 This exception
applies unless the public interest requires disclosure.
> Information relating to the appraisal of real estate prior to its acquisition." As with the
litigation exception, this exception does not apply if the public interest requires
disclosure.
A record that has existed for more than 25 years must be disclosed, even if it would otherwise
fall within one of the exceptions.12
It is important to remember that the exceptions mean that the city is not obligated to disclose the
record. Most exceptions do not prohibit the city from making the disclosure.
5 ORS 192.420
6 ORS 192.410(6).
7 ORS 192.502(1).
8 ORS 192.502(4)
9 ORS 192.502(9)
t0 ORS 192.501(1)
ORS 192.501(6)
12 ORS 192.495 - 4i
E-mail Communications/Public Records Law
March 19, 2001
Page 4
4. Conclusion
People often consider e-mail to be similar to communicating by telephone. However, when it
comes to public records requirements, a far more lasting, and possibly disclosable, record is
made with an e-mail message than with a telephone call.
Council members are encouraged to make sure that the City Recorder is provided with copies of
all documents relating to city business, e-mail or otherwise, so that any retention and disclosure
requirements can be met.
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