E-mails under open records act, AG says

November 9, 2001

The opinion, announced at the First Amendment Conference at the University of Central Oklahoma in Edmond, was requested by Susan C. McVey, director of the Oklahoma Department of Libraries. McVey was out of state and unavailable for comment.

Edmondson said electronic messages between state agencies and between state and local governments fall under the state law that requires public records to be preserved and available for inspection and copying.

It is the first opinion issued by the attorney general that specifically addresses the issue of electronic messages, commonly referred to as e-mails, said Gerald Adams, spokesman.

Edmondson cited language in the state law that defines “record” as all documents “regardless of physical form or characteristic.”

As such, he said e-mails must be treated as other records under the Records Management Act, which prohibits government agencies from destroying documents unless they have “no further administrative, legal, fiscal, research or historical value.”

Oklahoma Archives and Records Commission rules allow for the disposal of ancillary records, but requires “substantive” records to be kept.

Therefore, whether a specific e-mail must be maintained after they arrive for archiving is a question of fact that cannot be addressed in an attorney general’s opinion, Edmondson said.

It is the responsibility of both the sender and receiver to save electronic e-mails between agencies, the opinion said.

It said an agency can allow access to data in an electronic format so long as the system is secure enough to preserve the records and safeguard them from destruction or alteration.

If the records contain information required to be kept confidential, an agency must provide a format that allows for redacting the confidential material.

Although the Archives and Records Commission has no authority over the records and archives of political subdivisions of the state, the law requires local governments to treat their records like state records “as far as practical,” the opinion said.