Open Meetings and Public Information Requests

Charette in ActionThe law is a prickly thing. One wrong misstep and you can create a heap of new issues. While many questions are created, few answers are understandable. It is the crux of school law.

Fortunately, Corey Wood has done a great job of capturing the information in a blog post from a TASB presentation titled “Trustees and Technology: Getting Wired Without Getting Shocked” from Thomas A. Gwosdz, a Staff Attorney for TASB. I have linked to Corey’s blog post and the TASB presentation, but I thought I would share the highlights below that will help answer some of the more nagging questions as they pertain to the new technologies. It is a very interesting read, for sure.

What do e-mails have to do with the Open Meetings Act?
Short Answer: If school board members use e-mail as a substitute for deliberation in properly posted public meetings, the e-mails may violate the Texas Open Meetings Act (OMA).

Is it ever appropriate for board members to contact each other by e-mail outside of public meetings?
Short Answer: If the e-mail exchange causes a quorum of the board to deliberate outside of a public meeting, then an illegal meeting will have occurred. Whether the board or any individual could be held liable for the violation depends on the circumstances surrounding the communications.

What kinds of e-mails qualify as deliberation of public business?
Short Answer: According to the attorney general, if even one board member speaks (or, presumably, e-mails) about school business to a quorum of the school board, deliberation-and therefore a meeting-occurs, even if no other member responds. If a one-way communication by one board member to a quorum of the board constitutes deliberation, then a listserv posting, cc to the rest of the board, or a reply to all e-mail on a matter of public business could run afoul of the OMA.

Is forwarding information from a non-member considered a deliberation?
Short Answer: Arguably, yes. By expressing views in a message copied to all board members. Potentially causes a deliberation among a quorum of the board. On the other hand, if the message is sent to the superintendent without copying the board, no violation will occur.

Can the administration use e-mail to contact board members outside of a public meeting?
Short Answer: The superintendent is not a member of the school board; therefore, he is not technically subject to the OMA. As a result, the superintendent and other members of the administration may use e-mail to communicate with the board (even the whole board at one time) about school business. Superintendents and others who are not on the board should exercise caution, however, not to use e-mail in a way that facilitates an open meetings violation on the part of board members.

Are board members’ e-mails public records?
Short Answer: The e-mails are records subject to the Public Information Act. According to the attorney general, e-mails about district business sent to or from a government official’s home computer are subject to disclosure absent an applicable exception.

What about a personal e-mail sent from a school e-mail account?
Short Answer: E-mails that are not related to the transaction of official district business are not subject to public disclosure.

Are trustees allowed to make personal use of school district technology?
Short Answer: Perhaps not, at least according to the Internal Revenue Service.

Are there any limits to what a trustee can say on his or her own website?
Short Answer: Yes. Just because it is easy to say your peace on the Internet does not mean it is free. If members cross the line and disclose confidential information or commit defamation, they may expose themselves to a variety of civil penalties.

Can trustees use cell phones to conduct school business?
Short Answer: many of the legal issues presented by the use of e-mail are also presented by the use of cellular telephones.

Is there a way board members can participate in meetings while they are out of town?
Short Answer: Yes, but it will not be easy. The OMA provides several telecommunications options for participating in or broadcasting public meetings, but each applies only in limited circumstances. Although a telephone conference call is not an option, the OMA appears to permit participation by video conference if the district can overcome several technical hurdles.

So there you have it. Clear as mud, right? Well, thanks to Corey and TASB, I have learned a few things here. Check out their links and see what else you can gather from their work. Lord knows that I am no expert (consider that my disclaimer for answers listed above). Check with a school law attorney whenever there is a question about these things.

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