The following is a digital copy of an opinion letter from partner John B. DeRosa of the law firm of Friedman, DeRosa and Rondeau of North Adams, Mass., a law firm which is counsel to the city of North Adams, Mass. This copy was supplied  by Mr. DeRosa to GreylockNews.COM. The document was provided as Opinion022306.doc on March 4, 2006.

 

                                                            February 24, 2006

 

 

Marilyn Gomeau

City Clerk and Clerk of the Council

City of North Adams

10 Main Street, Room 109

North Adams, MA 01247

 

            RE:       Open Meeting and Public Records

 

The following opinion is rendered in response to several questions raised by Councilor Clark Billings’ February 9, 2006 correspondence to the North Adams City Council regarding whether discussions of city matters within certain forums, namely, on weblogs, a Councilor-hosted television program, and at a candidates’ night, violate the open meeting law.  The letter also questions whether e-mails between Councilors are public records.  The open meeting law, G. L. c. 39, § 23B, requires, with few exceptions inapplicable for purposes of this discussion, that all meetings of a governmental body be open to the public.  As such, § 23B prohibits meeting “in private for the purpose of deciding or deliberating toward a decision in any matter . . .”  G. L. c. 39, § 23B.  A quorum of Councilors may not engage in substantive discussion, defined as “deliberation”, concerning public business except at a properly announced meeting held in compliance with this law.   A quorum is defined as a simple majority of the public body, unless otherwise defined by applicable constitution, charter, rule, or law.  A quorum also includes any subcommittee, even if it only engages in fact-finding to be reported to the Council or in formulating recommendations to the commission.  Nigro v.

Conservation Commission of Canton, 17 Mass. App. Ct. 433, 436 (1984).[1]  Deliberation is “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.”  A quorum engages in “deliberation” if there is a “verbal exchange” concerning a decision on a matter within its jurisdiction, regardless of whether or not the discussion culminates in an official vote. Gerstein v. Superintendent Search Screening Committee, 405 Mass. 465, 470-471 (1989) (committee members interviewing candidates engaged in deliberations by asking applicants questions, even though committee members did not converse among themselves).

 

The purpose of the law is to enable public access to “decisions made by its public officials and to the way in which decisions are reached.” Foudy v. Amherst-Pelham Regional School Comm., 402 Mass. 179, 184 (1988).  The law provides public access by “eliminat[ing] much of the secrecy surrounding the deliberations and decisions on which public policy is based.”  Ghiglione v. School Comm. of Southbridge, 376 Mass. 70, 72 (1978).

 

I.          Commentary Postings on Weblogs

 

As noted in Councilor Billings’ letter, it is well recognized that both telephone conversations and e-mail correspondences, even if made among individual elected members, violate the open meeting law if a quorum of members participate in discussions in a ‘serial’ fashion.  Simply put, all correspondences between Councilors related to city matters conducted outside of an open meeting, including e-mails and telephone conversations, should be limited to scheduling and other administrative matters.  In terms of “weblogs”, which is one of the issues raised in Mr. Billings’ letter, to assess whether comments posted thereon violate the open meeting law, one must first define the term.  The Heritage Dictionary defines a “weblog” as “[a] website that displays in chronological order the postings by one or more individuals and usually has links to comments on specific postings.”  To the extent a weblog constitutes a virtual posting-board for comments by web users in general, there is substantively no difference from a Councilor’s commentary on a weblog as opposed to a newspaper or other form of media.  In this regard, the open meeting law does not prevent Councilors from expressing their opinion on public issues.  As such, Councilors may post comments on a weblog without garnering any comment, much less deliberation, by fellow Councilors.  Based on the premise that a weblog is a quasi-public discussion over the Internet as opposed to a specific deliberation between Councilors, we believe that comments posted on a weblog typically would not violate the open meeting law.

 

Alternatively, if an elected member somehow utilizes a weblog as a ruse to poll other members who participate or deliberate, the matter is entirely different.  As with all discussion of public issues, the purpose, place and manner of communication will determine whether the open meeting is violated.  If a weblog is utilized by a quorum of Councilors or a subcommittee to deliberate on a particular matter, only then would it violate the open meeting law.  Otherwise, commentary on a weblog by a Councilor is acceptable under the open meeting law.

 

II.  Councilor-Hosted Television Programs

 

In terms of a Councilor-hosted cable access TV program where multiple Councilors discuss matters within their jurisdiction, such discussion certainly runs the risk of violating open meeting requirements.  Indeed, a quorum of such Councilors, if engaged in deliberation, would constitute a textbook violation in that a corporal meeting of elected officials occurs in a forum that is not a public meeting.  Although such discussions are not “private”, and do not violate the law’s design for public access, they are not public meetings with proper notice and an opportunity for the public to attend for purposes of § 23B.  Although a Councilor is certainly free to attend a television, radio,

or other media program and discuss public issues, the convening of multiple Councilors at the instigation of an  elected colleague poses a forum for polling members concerning their decisions on a particular matter and deliberating outside of a designated public meeting.  Such meetings should be avoided even if a quorum is not present, as the potential for polling, deliberation, and/or a serial determination following such meetings is significant, especially where the discussion has all the trappings of a public meeting and Councilors may broker support for their respective position through commentary and discussion with their colleagues and the audience.

 

III.       Candidates’ Night

 

In terms of Councilors attending a candidates’ night to respond to questions about City issues, since the question does not indicate the format for a candidates’ night, for purposes of this discussion, we assume that the question concerns a public forum whereby members of the electorate or a mediator questions candidates for office concerning their particular political views.   Under these circumstances, no “deliberation” occurs for the purpose of the open meeting law.  Under the statute, “deliberation” is defined as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision on any public business within its jurisdiction.”  A candidate forum whereby the public is allowed to assess particular viewpoints of the candidates is designed for a wholly separate purpose, namely, to allow the public to make its decision as to which candidates are desirable for office.  Such an endeavor is wholly separate from the concerns of openness by governmental bodies addressed under the statute.

 

IV.       Councilor E-mails as Public Records

 

E-mails between City Councilors are likely discoverable as public records.  General Laws chapter 4, § 7(26) defines public records as all “books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made

or received by any officer or employee of any agency, executive office, department, board, commission, bureau,  division or authority of the commonwealth, or of any political subdivision thereof .  .  . unless such materials or data fall within” an exemption.  This definition includes computerized information, including e-mails.   The definition refers to records made or received by any officer or employee of a political subdivision. The public records law does not contain a definition of an officer or employee. “Employee” is defined in other statutes that apply to municipalities, such as the Massachusetts Tort Claims Act, G. L. c. 258, § 1, and case law pursuant thereto; and in the Conflict of Interest statute, G. L. c. 268A, § 1. These statutes define “employee” broadly, and include full-time, part-time, temporary, elected, appointed, and volunteer workers.  Members of boards and commissions fall within these definitions.  No Massachusetts appellate court has decided yet what definition of employee should be used in matters involving the public record laws.

 

With regard to e-mail messages, the Massachusetts Supervisor of Public Records (SPR) has issued a bulletin and advisory opinions indicating that e-mail messages are subject to disclosure to the same extent that analogous paper records are subject to disclosure under the public records law.  Accordingly, e-mail messages are subject to records retention policies in the same manner as paper documents.  Additionally, the Middlesex District Attorney’s Office, in the context of communications between elected officials under the open meeting laws, has recommended that when an e-mail message is sent or received by a member of a governmental body, a hard copy be created and placed in a central file, where it can be provided as a public record on request.   Councilors should also be aware that court decisions involving discovery disputes have reflected the principle that e-mail communications are subject to discovery.  Accordingly, we believe that e-mails between Councilors must be viewed as potentially discoverable as public records and/or in court proceedings and should act accordingly.

In closing, we note that Councilor Billings’ letter requests that our office consult

with the Berkshire County District Attorney’s Office regarding the above opinion.  In this regard, the open meeting law provides that the District Attorney is charged with the responsibility of enforcing the Law at the local level.  The law does not direct the District Attorney to provide advisory opinions in this regard; it is our understanding that the District Attorney’s involvement is limited to enforcing claimed violations of the statute.  We have copied the Berkshire County District Attorney’s in this regard.

 

                                                                        Very truly yours,

 

 

 

                                                                        John B. DeRosa (jderosa@freedmanderosa.com)

 

cc:        Joseph A. Pieropan, Chief of Appeals

            Berkshire District Attorney’s Office

 

Freedman, DeRosa & Rondeau. 87 Marshall Street, Bldg. 1, Suite 200  / North Adams, MA 01247 Voice: (413) 664-1073