Jefferson County Board of Education members wrestled with transparency issues at Thursday’s special meeting.
Last night, board attorney Brad Miller led an instructional session with board members on Colorado’s Open Meetings laws and the Colorado Open Records Act (CORA), opening the door to possible changes in how board members handle public business on email.
Although most of the presentation was a basic discussion about how many members constitutes a meeting, reminders about not hitting “reply all” on an email, and what constitutes an open record, the subject of emails took a different turn.
At issue, first, was how to handle an email that is received in a board member’s personal account and, second, what the laws are around retention of emails.
Under state law, all emails by government officials concerning government business may be subject to CORA — with few exceptions — regardless of if those emails are on a personal account, a work account, or an official’s government account.
While some districts, including Denver Public Schools, do not require emails that could be considered public record to be stored for a specific amount of time, a number of the state’s largest districts do impose such requirements.
Miller recommended that any emails received through a non-Jeffco account be immediately forwarded to their Jeffco accounts and then responded to from there.
However, when it was questioned how long board members should “archive” their personal emails, Miller said he, personally, wouldn’t require the directors to archive them at all since the District did not have legal authority to impose such a requirement.
“As a practical matter, I would integrate no retention obligation whatsoever,” Miller told the board. “I don’t know how else it could be done.” Miller explained that there is not any legal basis for mandating retention of email correspondence as there is for records such as tax records, personnel records, student records, and financial records.
Miller said because of the volume of emails that board members receive on a variety of topics, it is almost impossible to create a policy that would determine what could be thrown away immediately and what would need to be archived.
He also said there is no state or federal law that says a minimum number of archive days is required, therefore, it best just to say zero days.
But some board members worried that a lack of firm policy could undermine the idea of transparency on the part the school board members.
Jill Fellman questioned the idea, citing a Steve Zansberg report that electronic documents must be treated like paper and not destroyed.
“I read that to mean we should be keeping the emails, not deleting them,” Fellman said.
Zansberg is a metro Denver-based attorney who represents the Colorado Press Association members and serves as president of the Colorado Freedom of Information Coalition.
Miller only agreed in part to the report, saying that was true of things like financial reports and other items, but that emails were not a part of that requirement.
However, many local governments in Colorado have adopted an “if-it-were-paper-and-you’d-save-it” policy. That means if an official gets an email that would legally have to be saved if it were on paper, then they should print it and file it. Emails can then be deleted after a set number of days under that government’s policy.
Fellman said she believed the district should have a retention policy of some sort to make sure everyone was on the same page.
Lesley Dahlkemper took it one step further and said she believed the board needed a policy describing the letter of the law on all the open meetings and open records acts requirements so it was consistent and clear.
The rest of the board agreed and instructed Miller to draft up a policy that the board could consider at a future meeting.
President Ken Witt said Miller should keep it as simple as he could.
“Make every effort to minimize the burden while meeting the statutory expectations,” Witt said.
News story originally posted on Complete Colorado on January 30, 2015.