How Government Agencies Can Mitigate the Risk of Open Records Request Violations

The open records landscape

What is a public record?

Generally, a public record can consist of many things and take many forms, such as documents, papers, letters, maps, books, tapes, photographs, computer-based or generated information, or similar material prepared and maintained or received in the course of a public office or agency's operation.

The following are examples of public records:

• A text message on an agency-issued device about a decision made during a council meeting;
• An email about problems that local businesses are having with access to public water;
• A meeting minutes documents from last month's commissioner's meeting;
• Social media posts about safety services available during an extreme weather event; and
• A text message on an employee's personal mobile device about a bid awarded to a vendor.

"Whoever is taking the minutes, their notes technically are subject to open records law," Roberts said. That is something that government agencies should bear in mind.

"Ultimately, minutes are a transcript or agenda of a public meeting and are sacred to the democratic process," said Riley Lambert, senior government account executive at Smarsh.

Open record exemptions and litigation risks

As with the FOIA, certain states similarly exempt certain records from public access and disclosure, such as records that include personal information, national security matters, or law enforcement matters.

When a public records request is made, the requestor of that information has the right to ask of the government agency, "'If you are going to deny any of this request, including redaction, please cite the statute or exemption in the law that allows you to do so,'" Roberts said.

Roberts explained that if a government agency cannot or will not produce information in response to a records request or misapplies any exemptions, that can create litigation risk for that government agency. He said that various states have various mechanisms for resolving an open-records request case; some rulings are binding, while others are recommendations.

Records retention requirements for government agencies

Another important consideration is how long government agencies must keep public records to ensure compliance with certain recordkeeping requirements. Roberts explained that often, records retention requirements are determined not by public records law but by a separate statute or retention schedule adopted by the government entity itself. For example, many governments adopt the schedules promulgated by their state archivist.

Similar to the requirements for responding to a records request, recordkeeping requirements are dictated by the context of the subject matter, not the form of communication. Documents pertaining to litigation generally need to be kept longer.

Social media posts and communications made over social media channels can also be a source of confusion as to whether or not such records are exempt from open records requests or need to be archived. "Regardless of the communication channel, it's about the context of [the communication]," Lambert said. "Is it about agency business? If it is, it needs to be archived."

Impact of technology on open records

Digital communication channels are creating new challenges for government agencies, specifically regarding open records requests and recordkeeping requirements.

Common challenges include:

• Capturing data from all digital channels
• Efficient search and retrieval of data in response to open record requests
• The potentially high costs associated with these requirements

“Technology is expanding very rapidly, and it takes a lot of thought to balance the public's right to know versus the government's right to operate efficiently," Roberts said.

However, not embracing newer technologies can actually slow down operations. "There are solutions out there, like Smarsh, that can make this complicated issue less complicated," Lambert said. Certain technology solutions can assist government agencies in simplifying and streamlining the capture, archiving, and retrieval of records, for example.

Conclusion

The most important takeaway for government agencies is this: It does not matter where the relevant communication or information is stored – on a personal device, government device, in a social media post, or in what format – it's the content of the information that matters most. "If it concerns official business, then that makes it a public record," Roberts said. If the information that is the focus of an open records request does not fall under any exemptions, it falls on the government agency to appropriately respond.

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