Introduction Government E-Mail Law & Policies P Legislative Immunity P Federal Rules of Civil Procedure Peter S. Wattson Senate Counsel P Minnesota Policies on Privacy of Minnesota Electronic Communications National Conference of State Legislatures Legislative Summit New Orleans, Louisiana July 24, 2008 Legislative Immunity Scope of Immunity Origins Legislative Acts P Common Law P Within “the sphere of legitimate legislative < “That the Freedom of Speech, and Debates or activity” proceedings in Parliament, ought not to be impeached or quesioned in any Court or P An “integral part of the deliberative and Place out of Parliament.” communicative processes” P Constitutions < Enacting legislation < “[F]or any speech or debate in either house, < Other legislative duties they shall not be questioned in any other – Confirmation of executive appointments place.” – Impeachment P Statutes Some Activities are Not Immune Uses of Immunity Political Acts From Ultimate Relief P Communications to the Press P Criminal Prosecution P Communications to Constituents P Liability for Damages P Pressure on the Executive Branch
Legislator and Aide Uses of Immunity, cont’d “Treated as One” From Giving Testimony or Producing Documents Gravel v. United States (1972) P In Criminal Actions P Subcommittee on Buildings and Grounds P In Civil Actions P Pentagon Papers < Members of Congress < Read aloud < State < Entered into public record Legislators < Local Legislators P Grand jury investigation of leak P Protective order - aide could not be questioned about the meeting Electronic Documents Create Electronic Documents Create Special Problems Special Problems, cont’d United States v. Rayburn House Office Bldg. (2007) In re John Doe Proceeding (2004) Congressman William Jefferson P Investigation of Congressman for bribery, P District attorney investigating campaign wire fraud, conspiracy law violations by legislators and staff P Office searched P John Doe judge subpoena < Search of paper files violated Speech or P All backup tapes of all electronically Debate Clause stored communications on December 15, < Copying computer files did not violate Speech 2001 = “hundreds of millions of printed or Debate Clause pages” P Paper documents returned, computer P Overly broad - quashed files not Electronic Documents Create Electronically Stored Special Problems, cont’d Information Wash. State Farm Bureau Fed. v. Gregoire (2006) Federal Rules of Civil Procedure P Suit over state spending limit P “Electronically stored information stands on equal footing with . . . paper P E-mails among legislators, legislative documents” staff, Governor’s staff, Attorney General P Except that, it doesn’t P Non-privileged e-mails ordered disclosed P “Because of lax corporate management, P Privileged message included within string e-mail is often the most valuable source of non-privileged messages of evidence in civil or criminal litigation.” P Court ordered recipient party to black it out
Federal Court Rules on Electronic Information Sedona Conference Guidelines Destruction of Communications Best Practices for Managing Information P No sanction for loss of electronically P When litigation is anticipated, routine stored information “as a result of routine, destruction practices must be suspended good-faith operation of an electronic information sytem.” Minnesota Statutes Minnesota Senate Policies Backup P Correspondence with elected official is private - Minn. Stat. § 13.601, subd. P No nightly backup of e-mail messages 2 P Unless moved to separate directory < Unless made public by sender or recipient P Bill drafting files and communications -Minn. Stat. § 3C.05, subd. 1(a) < Not public < Not subject to judicial process Conclusion Government E-Mail Government E-Mail Law & Policies P Legislatures have a constitutional right to keep their electronic communications Peter S. Wattson private Senate Counsel P Legislatures need modern procedures to Minnesota manage them National Conference of State Legislatures Legislative Summit New Orleans, Louisiana July 24, 2008
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