College board’s ‘private’ e-mail meetings determined illegal

Wednesday, March 11, 1998

BISMARCK, N.D. (AP)—A workday e-mail conversation seems innocuous enough. When state officials are involved, however, it could be a matter of public record.

The question of whether such correspondence is private was brought up when North Dakota’s attorney general ruled that the state Board of Higher Education—upset by reports of a $6 million deficit at the University of North Dakota—had held illegal secret meetings.

The ruling came after The Associated Press revealed that board members used e-mail to discuss and even take straw votes on whether to fire the president of the University of North Dakota.

The board members—who eventually settled on an apology from university President Ken Baker—had sent e-mails discussing the impact of firing him.

“Forcing Ken out will heighten anxiety at UND and in Grand Forks,” university Chancellor Larry Isaak warned in one message. “It will create much thrashing about. It will be bloody and public.”

Attorney General Heidi Heitkamp found that the messages themselves didn’t constitute an illegal meeting. They were part of the evidence she reviewed before ruling that the board broke the law by holding secret meetings at a hotel and in a college office.

The board willingly released the messages when asked by the AP.

North Dakota’s broad open records law says most records are available for public inspection. It doesn’t specifically say that government e-mail is a public record, but in most cases around the country so far, it has been considered public.

“Fortunately so far, most of the time when the decision comes up the decision is made in favor of open government,” said Paul McMasters, First Amendment ombudsman for the Freedom Forum.

“Courts and authorities in most of the cases said e-mail can’t be used as a substitute for smoke-filled back rooms,” McMasters said.

City council members in Phoenix, Ariz., debated a range of issues and held straw votes via e-mail. As a result of inquiries by the Arizona Republic in 1996, the city spent $5,000 to upgrade the system so that copies of e-mail could be kept in the city clerk’s office for public access.

In Sarasota, Fla., a lawsuit uncovered a secret arrangement in which a majority of county commissioners agreed via e-mail last year to withhold a public vote on whether to sell a proposed library site. The lawsuit was dropped when the commissioners left office.

Also in 1997, Baltimore Community College Board members got rid of $25,000 worth of computer equipment after the Baltimore County attorney told the board that using e-mail to discuss public affairs would violate the state’s open meeting law.