E-mails between local school officials discussing school business are public record, Arkansas’ attorney general has reaffirmed in a legal opinion.
Attorney General Dustin McDaniel’s August 31 opinion came in response to a request from Prosecuting Attorney Will Freland of the Twenty-Third Judicial District. The question specifically involved e-mails between members of a local school board and/or between school board members and the county superintendent. In his legal interpretation, McDaniel advised that documents are subject to disclosure under the Arkansas Freedom of Information Act so long as they are “kept by school officials” and their subject matter “involves school business.”
The ruling points to the continuing problem of ensuring meaningful public access to ephemeral electronic communications, especially in the absence of universally accepted archiving and retention protocols. An investigation by the Wilmington, N.C. Star-News recently disclosed that Wilmington city officials routinely marked official-business e-mails as “private,” presumably to cause them to be excluded from disclosure in response to public-records requests.
Interestingly, McDaniel’s opinion raises, but does not resolve, the issue of whether a back-and-forth “conversation” over e-mail could constitute a meeting that must be conducted publicly in accordance with the Arkansas Open Meetings Law. As more and more discussions go “virtual,” with webinars and online chats replacing face-time, the issue of “what is a ‘meeting’” increasingly will challenge courts and legislators.