E-mail and the Public Records Law

Karen Haase Harding & Shultz (402) 434-3000khaase@hslegalfirm.com

H & S School Law@KarenHaase

Nebraska Public Records Act Basic statute Neb. Rev. Stat. § 84-712 In effect since 1866

• Amended to allow for copies• Amended to provide for electronic

data Premise: the public gets records

Hyannis AG Disposition Letter

Patron demanded from superintendent:[A] copy of all e-mails sent by to you to any individual Board Member or all Dist. #11 Area Board Members and also any e-mails received by you from all or anyindividual Dist. #11 Area Board Members dating back to October 1, 2006 up to and including February 9, 2007

Hyannis AG Disposition Letter

Superintendent responded• Individual e-mails not public• E-mails to all might be public• ESU 16 will search and charge $400• Searched his own sent items and

provided copies of e-mail sent to all board members

Hyannis AG Disposition Letter

Patron filed complaint with AG AG:

• Fee for searching permissible • Individual e-mails are public if

discussing school business• Board members have to search personal

e-mail accounts and personal computers and produce

What Does the Statute Require?

Who Is Entitled to Access?

All citizens of this state All other persons interested in the

examination of the public records No explanation of the reason required Section 84-712 applies equally to all persons,

without regard to the purpose for which the information is sought. (State ex rel. Sileven v. Spire, 243 Neb. 451, 500 N.W.2d 179 (1993))

What is a “public record?” Neb. Rev. Stat. § 84-712.01: “all

records and documents, regardless of physical form, of or belonging to the [school district].”• Can include e-mail• The same rules apply to electronic

data as apply to paper records

“Belonging to the state” Records "of" or "belonging to" state

agencies under § 84-712.01 are those records "owned" by the agencies or those records for which the state agencies possess title or an ownership interest. The mere fact that a record is in the

possession of a public officer or a public agency does not make it a public record. Op. Att'y Gen. No. 97033 (June 8, 1997).

Email as Public Record• Records “of” or “belonging to”

state agencies are those records “owned” by the agencies or records for which the state has title or ownership interest

• E-mails in your possession can be public records – even if they are on your home email and computer…

When Emails Aren’t PR• The mere fact that a record is in

the possession of a public officer or a public agency does not make it a public record.

• Purely personal emails might not be public records depending upon your policy or negotiated agreement

De Minimus Use• 49-14,101.03: permits minimal use

of public resources if▪ The personal use is part of

compensation provided in employment contract or policy AND

▪ The personal use as compensation is reported to IRS

OPS Situation• Not all state public records

statutes are the same• Things can be strange in Omaha• Not yet a current employee• Lessons▪ Know your policy▪ Don’t surprise board members

E-mail and the Public Records Law

Karen Haase Harding & Shultz (402) 434-3000khaase@hslegalfirm.com

H & S School Law@KarenHaase