As a result of a decision which may be a surprise to many Solicitors and Open Records Officers, elected officials’ (board and council members) personal computers are no longer off limits to an Open Records Request. The prevailing thought had been, since those devices seemingly are not in possession or control of a Local Agency (school district, township, borough, authority, etc.) any records kept there would not be “of the township”, as had been the Montgomery County Court’s impression in Mollick v. Township of Worcester.
The Commonwealth Court disagreed with the lower court’s position, at least in a case in which two or more elected officials are involved in the exchange. The Court declared “regardless of whether the Supervisors herein utilize personal computers or personal email accounts, if two or more of the Supervisors (on a three person board) exchanged emails that document a transaction or activity of the township and were created, received or retained in connection with a transaction, business or activity of the township, the Supervisors may have been acting “as the Township”, and those email could be records “of the township”. As such, any emails that meet the definition of “record” under the Open Records Act, even if stored on the Supervisors’ personal computers or in their personal email accounts, may be records of the township.
Of further concern is the Court’s focus on the exchange of emails being a “deliberation of the township business within the meaning of the Sunshine Act.” By emphasizing such point, the Court allows for the possibility that aside from being an open records matter, the electronic exchange between two board members may be a violation of the Sunshine Act, which could result in individual criminal liability, including fines and sanctions in addition to those provided in the Open Records Act.
The Mollick case and others recently issued by our Commonwealth Court include other important rules and guidelines for local board and council members. As such, we will be available to answer questions and offer further explanation upon your request. For now, to paraphrase the “60 minutes rule”, we offer some general advice: If you don’t want to see it on 60 Minutes (or the local newspaper, television or blog), don’t do it, say it or send it!
KOZLOFF STOUDT, Attorneys