ELECTRONIC COMMUNICATIONS & PUBLIC RECORDS FOR LEGISLATORS - - PowerPoint PPT Presentation

Todd Everts Pad McCracken Laura Sankey Keip

ELECTRONIC COMMUNICATIONS & PUBLIC RECORDS FOR LEGISLATORS

THE LEGAL OBLIGATIONS

The Public Trust

Go Government is a trus rnment is a trust, and the of t, and the officer cers of the

• f the

go government are trus rnment are trustees; and both the trus ees; and both the trust and the t and the trus trustees are creat ees are created for the benef d for the benefit of the people. t of the people. ─ Henr Henry Cla y Clay The holding of public of The holding of public office ce or emplo

• r employment is a public

ment is a public trus trust, creat t, created b d by the conf the confid idence that the elect ence that the electorat rate reposes in the int reposes in the integrity of public of egrity of public officer cers, legislat , legislator

• rs, and

s, and public em public emplo

• ployees. A public of
• ees. A public officer

cer, legislat legislator

• r, or public

, or public emplo employee shall carr ee shall carry out th y out the individual’s duties for the e individual’s duties for the benef benefit of t of the people of the s the people of the stat ate. e. ─ from § from § 2-2-1

• 2-103, Montana Code Annotat

03, Montana Code Annotated

• Art. II, sec. 8

Right of Right of par participation. icipation. The public has the right The public has the right to to e expect g governmental agencies t agencies to af afford such rd such reasonable oppor reasonable opportunity unity for citizen par r citizen participation icipation in the operation of the in the operation of the agencies prior t agencies prior to the f the final nal decision as ma decision as may be y be pro provided b ided by la law.

• Art. II, sec. 9

Right t Right to kno know. . No per No person shall be

• n shall be depriv

deprived ed

• f
• f the right t

the right to e examine amine documents or t documents or to obser

• bserve

e the deliberations of all the deliberations of all public bodies or agencies public bodies or agencies

• f
• f stat

state go e government and its rnment and its subdivisions, e subdivisions, except in cept in cases in which the demand cases in which the demand

• f
• f individual priv

individual privacy clearly acy clearly exceeds the merits of ceeds the merits of public disclosure. public disclosure.

Montana Constitution

• Art. II, sec. 10

Right of priv Right of privacy acy. The right of individual The right of individual priv privacy is acy is essential t essential to the w the well-being ll-being of a

• f a

free socie free society and shall y and shall not be not be infringed infringed without the without the sho showing ing

• f a compelling
• f a compelling stat

state e int interest. rest.

• Art. V, sec. 10

Organ Organization and zation and procedure. procedure.

…

(3) (3) The sessions of The sessions of the the legislature and of legislature and of the committ the committee of the e of the whole, all committ whole, all committee e mee meetings, and all ings, and all hearings shall be hearings shall be

• pen t
• pen to the public.

the public.

MT Constitution, Cont.

“Public inf “Public information” rmation” means inf means information rmation prepared, o prepared, owned, used, or retained b ned, used, or retained by an any y public agency public agency relating t relating to the transaction the transaction

• f of
• f official

cial busines business, regardless , regardless of

• f form,

rm, except f cept for conf r confidential inf idential information that rmation that must be must be prot protect ected against public d against public disclosure under applicable la disclosure under applicable law. “Public record” “Public record” means means public inf public information rmation that is: that is: (a) (a) fixed in an d in any medium and is y medium and is re retrie trievable in usable f ble in usable form f rm for future r future ref reference; and rence; and (b) (b) designat designated f ed for ret r retention b ntion by the the … legislativ … legislative branc e branch[.] [.]

What is a public record?

It’s about the content!

Why is this Important?

The Presumption of Openness: The Presumption of Openness:

• Under the stat

Under the state constitution and § e constitution and § 2-6-1

• 6-1003,

003, Montana citizens ha Montana citizens have a right t a right to e examine amine and tak and take copies of public records - copies of public records - that hat includes the public records y includes the public records you creat u create and and st store on y

• re on your o

ur own email accounts with y n email accounts with your ur

• wn de

n devices vices

• Ex

Exception: R ception: Records do no cords do not ha t have t to be made be made public when there is an individual priv public when there is an individual privacy acy right that is implicat right that is implicated AND that right t ed AND that right to priv privacy clearly e y clearly exceeds the merits of public ceeds the merits of public disclosure disclosure

3-P 3-Part Balancing Balancing Te Test

Montana Supreme Court

1. Does the constitutional rig Does the constitutional right t t to kno know apply t apply to the par the particular political subdivision against whom icular political subdivision against whom enf enforceme ement is sought? t is sought? The Legis The Legislativ ative Bran e Branch ch is a is a public body public body subject t subject to the pr the provis isio ions of Ar

• f Article

ticle II, section II, section 9. 9. 2.

• 2. Are the documents in question “documents of

Are the documents in question “documents of public bodie public bodies” subject t subject to inspe inspectio ction? The Montana Supreme Cour The Montana Supreme Court has br t has broadly

• adly

def defined “docume d “documents of publi ts of public bodies bodies” t ” to mean mean those those documents “generat documents “generated or maintained b ed or maintained by a a public public body which body which are someh are somehow relat w related t d to the function the function and and duties of duties of that body that body.” .” 3.

• 3. Is there a

Is there a priv privacy int acy interest present? rest present? 3a.

• 3a. If there is, does th

If there is, does the demand of e demand of individual individual priv privacy clear acy clearly e y exceed the merits of ceed the merits of publi public discl disclosu sure? (A) (A) Does the per

• es the person ha
• n have a subjectiv

a subjective or actual

• r actual

expectation pectation of

• f priv

privacy? acy? (B) (B) Is socie s society willing t y willing to recognize that recognize that expectation as pectation as reasonable? reasonable?

What is Legislative Business?

Legislative business is related to your function and duties as a legislator and your role as an enactor of legislation.

Durin During the Sessi the Session:  Legislativ Legislative bills, amendments and resolutions e bills, amendments and resolutions

 Committ Committee w work

 Records relat cords related t d to the transaction of y the transaction of your legislativ ur legislative e duties duties

• Voting f

ting for bills or amendments r bills or amendments

• Communications with y

Communications with your constituents ur constituents

During the In During the Interim: rim:  In Interim committ rim committee work ee work  Communications with y Communications with your constituents ur constituents

What is Not Legislative Business?

An Any writt y written communication that does not contain n communication that does not contain cont content relat ent related t d to legislativ legislative business e business does not need does not need to be be managed or re managed or retained f tained for a specif r a specific length of time ic length of time Ex Examples ma amples may include communications relat y include communications related t d to:  Pe Personal b business  Political activity litical activity  Your non-legislativ ur non-legislative emplo e employment ment

HOW THE BRANCH RESPONDS TO REQUESTS FOR RECORDS

• 1. General branch information, such as policies,

procedures, and request forms, is easily accessible

• n the branch website
• 2. Requests for information are directed to the

Executive Director or the Legal Services Director → if you get a request directly, you may refer the request to Susan or Todd for assistance

• 3. If the branch receives the request directly, you will

be informed of the request

• 4. The branch will review the request and may

contact you for clarification or greater specificity

Branch procedure for requests for public records

• 5. If the request applies to your private email

account, you will be responsible for fulfilling the request; you may seek legal advice or other assistance from the Legal Services Office

• 6. If the request applies to an mt.gov email account,

the Executive Director will work with you and with branch staff to fulfill the request

• 7. The Legal Services Office will review any emails

with you as necessary prior to delivering them to the requestor; you may also request a copy of all materials sent to the requestor

Procedure, Cont.

MANAGING YOUR PUBLIC RECORDS

Legislative Public Records

Records Managed b cords Managed by the the Branch: Branch:

• Bills and resolutions

Bills and resolutions

• Committ

Committee minut ee minutes

• Session journals

Session journals

• Int

Interim repor rim reports

• Legal opinions

Legal opinions

• Correspondence relat

Correspondence related t d to legislativ legislative e business that is rout business that is routed through the Branch ed through the Branch Records cords to be Managed be Managed by Y You as a Legislat u as a Legislator:

• r:
• Correspondence relating t

Correspondence relating to legislativ legislative e business that comes t business that comes to or fr

• r from y
• m you directly

u directly

How Do You Manage Your Public Records?

Best Pra Best Practices Suggestions: tices Suggestions:

• Ha

Have a a separat separate email account dedicat email account dedicated d solely solely to y your legislativ ur legislative business e business

• Sa

Save emails in that account f emails in that account for the ret r the retention ntion period that is specif period that is specified in the branch’s record ied in the branch’s record management policy management policy

• If y

If you ha u have someone mak someone make a request f a request for y r your ur records, contact the branch’s Chief Legal Counsel records, contact the branch’s Chief Legal Counsel

• r Ex
• r Executiv

ecutive Direct e Director f

• r for assistance in fulfilling

r assistance in fulfilling that reques that request

• Include an aut

Include an automatic disclaimer that notif matic disclaimer that notifies es correspondents that emails ma correspondents that emails may be y be subject t subject to public records requests public records requests

Proposed Retention Policy

Unique Features of an MT.gov Email Account

 Accounts should be used primarily for state legislative business → usage for “for-profit” or “non-profit” activities is not allowed  Email addresses are standard: Rep.FirstName.LastName@mt.gov

• r Sen.FirstName.LastName@mt.gov

 Inbox size is limited to 250 MB  Archive size is 20 GB and is readily accessible from a web-based browser  Passwords must be changed every 60 days  Email is accessible from your smartphone or tablet once you sign the Mobile Device Management policy  Legislative Services Division’s IT staff can assist with “right to know” searches at your request

If You Decide to Use a State- Administered Email Account

CONTACT INFO Todd Everts: 444-4023 teverts@mt.gov Pad McCracken: 444-3595 padmccracken@mt.gov Laura Sankey Keip: 444-4410 lsankeykeip@mt.gov