Technology and the Practice of Law Electronic Communications: Special Legal Requirements for Public Records and Meetings by Lisa Robertson Some of us remember when push-button telephones and fax machines were new technology. Today’s technolo-gies offer an unprecedented number of means by which people may discuss and follow the operations of local gov-ernment. In this article, I offer informa-tion regarding the relationship of electronic communications technology to the means by which the conduct of public business must be recorded. The Virginia Public Records Act (VPRA). 1 All attorneys struggle to determine whether, and for how long, client records should be preserved and stored. Should tangible files be eliminated if they are converted into electronic files? Should electronic files be moved to external devices or “the cloud”? Legal counsel for public bodies must assist clients with consideration of these questions in accordance with the VPRA. Lack of familiarity with VPRA can lead to public embarrassment or even criminal conse-quences. 2 Every elected and appointed public official must be given a copy of the VPRA by legal counsel or a locality’s administrator within two weeks of elec-tion or appointment, and must become familiar with its requirements. 3 The definition of “public record” under the VPRA encompasses e-mail, text messages, voice messages, and any other form of technology that records the discussion or transaction of public business. 4 VPRA prohibits a public record from being deleted or destroyed prior to expiration of a specifically-des-ignated “retention period.” 5 Retention periods are assigned by the Library of Virginia, according to “schedules.” 6 Each retention schedule covers multiple cate-gories of records. During a retention period, no particular means of storage is 54 VIRGINIA LAWYER | October 2014 | Vol. 63 prescribed; however, each public record must remain accessible, in one form or another, throughout its life-cycle. If elec-tronic storage is chosen, records must be converted and migrated as often as nec-essary so that information is not lost due to hardware, software, or media obsoles-cence or deterioration. 7 Even a public body’s computer system must be docu-mented: one schedule covers retention of “information technology,” including net-work diagrams, system access records, and system maintenance records. 8 Public officials with only a passing familiarity with VPRA may make improper choices regarding deletion of e-mails and other electronic records. There persists an incorrect assumption that records created or stored on per-sonal devices, even if such records dis-cuss public business, aren’t subject to VPRA. 9 VPRA requires certain corre-spondence of city councils and boards of supervisors, and of local administra-tors, to be permanently maintained — regardless of where created or stored. 10 At the expiration of their terms, public officials must deliver public records in their possession to successors. 11 Thus, legal counsel for public bodies should be prepared to discuss with clients the answers to questions such as: are officials preserving e-mail and other electronic correspondence as required? If a board member and county administrator cor-respond with each other via e-mail, which copy will be maintained as the permanent record, and where? Is the public body’s IT staff cognizant of VPRA’s requirements? Are backup copies of electronically stored records main-tained to protect against computer crashes and other disasters? 12 (Consider IRS official Lois Lerner, criticized for claiming to have lost e-mails due to a computer crash). The Virginia Freedom of Information Act (FOIA). 13 The FOIA requires public records and public meetings to be open for public viewing. Electronic Records. When a citizen seeks electronically-stored records, pub-lic bodies must produce them in any tangible medium requested. 14 Because of this, regardless of whether stored on public officials’ personal or public devices, public records must be main-tained in a format that can be accessed, read, converted to other formats, and e-mailed to others throughout VPRA retention periods. When assisting public clients in responding to a FOIA request, before responding on behalf of a client that “the requested records could not be found or do not exist,” 15 legal counsel may want to verify that clients have searched personal and public devices and relevant external storage locations — particularly if the requested records’ VPRA retention periods have not expired. If public records are in the custody of a third party for storage, maintenance, or archiving, the public body remains the legal “custodian” under FOIA. 16 Electronic Meetings. FOIA allows any local public body to implement interac-tive audio and visual means to expand public participation in meetings; 17 how-ever, during those meetings the mem-bers of the local public body must themselves be physically assembled. 18 Generally, local public bodies remain prohibited from conducting electronic meetings, except: (1) in limited circum-stances, during a state of emergency declared by the governor, an electronic meeting may be conducted without assembling a quorum in one location; 19 Communications continued on page 55 www.vsb.org