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City asks for AG opinion on e-mail

October 12, 2001

Hays City Attorney John Bird has asked for an attorney general´s opinion to determine who is the custodian of public records that reside only on a city commissioner´s personal computer.

Bird explained to the Hays City Commission at its meeting Thursday evening his plan and how the state´s open meetings and open records acts apply to electronic communication.

The presentation was made in the wake of requests by The Hays Daily News for copies of electronic mail between two or more commissioners — a majority of a quorum — during the last six months.

Companion requests were made last week to individual commissioners and to the city of Hays. The request made to commissioners also was directed to the city because of a question about who serves as custodian of the records.

Bird has said a request made to the city will be honored, in those cases where the e-mail was sent between two or more commissioners and a city employee.

However, he advised commissioners that they “may or may not” respond to the request made to them individually. He also said he does not think the city is the custodian of records that are on individual commissioners´ computers.

The two-commissioner threshold was used in making the request because that constitutes a majority of a quorum. If two commissioners meet and discuss city business, the conversation needs to be open to the public.

The newspaper´s request has revealed examples of e-mail between commissioners copied to other commissioners and between a commissioner and Acting City Manager Dorothy Stites, again copied to other commissioners.

In some cases, an established group mail address — — was used. By sending to that group address, the message automatically is forwarded to all five commissioners.

Even though the mandatory three-business-day limit has passed since the request was made, responses have been received from only three commissioners.

Commissioners Sunell Koerner and Dick Bedard provided copies of e-mails they had on their computers.

Mayor Henry Schwaller IV, before receiving the request, provided copies of some e-mail. He said he had access to e-mail received over the past 45 days. He has not followed up further since receiving the request.

Commissioner Troy Hickman has not responded at all.

Commissioner Larry Schmidt´s response, by e-mail, was direct. It simply stated: “Bite me.”

Under the state´s Open Records Act, recipients of an open records request have three business days to respond to the request. The law also requires a recipient of a records request, if he is not the custodian of the record, to respond in the same amount of time and provide information as to who the custodian would be.

Currently, Bird is contending that commissioners are not required to respond to the request, and he also thinks the city does not serve as the custodian of records that are on commissioners´ personal computers.

Topeka attorney Mike Merriam, who specializes in open records and open meetings and consulted by The Hays Daily News, said he believes the city would be the custodian for open records on city commissioners´ personal computers.

“I think you need that guidance and need that opinion,” Bird said of his request for an attorney general´s opinion.

Bird said the request directed to the city for e-mail sent between a city employee and two or more commissioners was proper and that the city was “diligently working on the request.”

Initially, Bird said the city would provide that e-mail by today, but he since has indicated that it will not be available that early.

He detailed for commissioners the process that will be followed to retrieve the information, saying that the city´s computer systems director will be scouring computers on the city´s network for e-mail to or from commissioners. Whatever e-mail is found then will be narrowed down to those that involve two or more commissioners. Bird also said they will have to review what is found to determine if any fit within exemptions to the state open records law.

Bird also told commissioners the city is exploring options that will allow better access by the public in the future, or streamline the process if such a request is made again.

Stites said the city is viewing the request as an “opportunity” to improve public participation. She said the city is looking at the possibility of adding the media to the city commission e-mail list. The city also is looking at printing out copies of the e-mails, which would then be available in the city manager´s office for review.

Commissioners made no comment on the subject other than Koerner, who suggested that maybe a bulletin board system would allow better public access to electronic city communication.


By MIKE CORN, Hays Daily News


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