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Municipal e-mail policies

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08/27/2015 - One in six American workers say that e-mail is "very important" for doing their job, with about 78 percent of office workers in the United States depending on the use of e-mail, according to a recent survey by the Pew Research Center.

The nonpartisan think tank has been tracking the use of e-mail over the past 15 years, with a 2002 survey showing that 61 percent of American workers use e-mail at work. For people using e-mail for business-related purposes, having two or more e-mail accounts is typical, or even required. Worldwide, the number of e-mail accounts is expected to grow by 1.1 billion over the next three years. But while the number of e-mail accounts continue to expand, private and public policies regarding e-mail use often fails to keep up with technology and public record laws.

In August, Downtown Publications conducted a survey of the 62 municipal clerks in Oakland County. Based on more than 50 responses to that survey, at least 45 communities provide municipal e-mail accounts to their elected officials. Of those, about 32 have formal or informal policies regarding the use of e-mail, while about a half dozen are in the process of either establishing policies or updating them. Of the more than 30 policies provided to Downtown Publications, about half reference the state's Freedom of Information Act (FOIA), and whether e-mail could be subject to public disclosure; two specifically reference the state's retention laws regarding public records; while none specifically address the use of private e-mail for public business.

Under Michigan's FOIA laws, all government records except those specifically stated in the act, are subject to public disclosure, including e-mail. Government agencies can be held liable if they keep e-mail messages too long, if their messages aren't properly destroyed, or destroyed too soon. Under the law, public records sent or received on a private e-mail account are subject to disclosure and record retention rules.

First Amendment attorney Herschel Fink, who currently serves as legal counsel to the Detroit Free Press, said access to public records held on private e-mail servers may pose problems at all levels of government, as illustrated in national news in recent months. Fink, who has fought and won national and local cases regarding access to public documents, said public records are subject to disclosure regardless of the form or location.

"It's a serious problem, and a problem in Michigan as well," Fink said. "There was one decision that I'm aware of that came out of Livingston County several years ago on this issue. The circuit court judge there found that it was a violation of a number of things, but in particular FOIA, and ordered that e-mails that were sent from and to a private account were public records."

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