E-Mails – The New Smoking Gun

Much has been reported of the lowering of inhibitions in the computer information age.  In the context of litigation and public dialogue on issues, caution should be exercised in communications conducted via e-mail.  Where expressions of opinion normally do not appear in more formal business correspondence or exchange of documentation, such may not be the case in communications exchanged by e-mail.  However, on two fronts, e-mail communications among School District Officials or between School Board Members may be open to disclosure under the Federal Rules as well as Pennsylvania’s new Right-to-Know Law (RTKL).

School Districts often find themselves faced with federal litigation involving civil rights and/or employment discrimination matters.  Such cases are governed by the new and strict rules of federal discovery that went into effect on December 1, 2006 governing electronic discovery.  For example, Federal Rule 34 provides that electronically stored documents are equally as discoverable as paper documents and normally must be produced.  The Rules are not limited to “official” files or central files.  Rather, all documents and data, regardless of where they are located and who is in possession of the documents, must initially be gathered and reviewed by the District’s attorneys to determine whether they must be produced.  This includes personal notes, “private files” and electronic material in a home computer or a hand-held device.

While the 2006 Federal Rule amendments have been in place for several years, Pennsylvania’s RTKL, which took effect January 1, 2009, has expanded the disclosure of e-mail communications beyond the litigation context to requests for access by the public.  The Pennsylvania Office of Open Records (POOR) addressed a public request for copies of e-mails in Mollick v. Methacton School District (AP 2009-0180).  In that case, the requestor asked the School District for 36 different categories of e-mails between, from or to Board Members.  The District denied the request on the basis that the e-mails were not public records or reflected pre-decisional deliberations.  POOR disagreed and directed that the e-mail had to be provided.  POOR determined that the District did not satisfactorily establish that the e-mails were part of pre-decisional deliberations.  Also, POOR noted that the RTKL’s exception did not protect records which were submitted to a quorum of the Board for deliberations at a public meeting.

Exercise caution in e-mail exchanges among and between District Officials and Board Members as those e-mails may be the subject of discovery requests in litigation or a request for access under Pennsylvania’s RTKL.  Our attorneys have prepared a presentation which can be shared with your District’s administrative team and School Board Members to provide you with greater guidance on e-mail and electronic data disclosure.  Please contact us to schedule a presentation at your District.