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Public Records and Managing Email

Article II, section 9 of the Montana Constitution.
Right to Know.
No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.


As elected officials, Montana legislators need to manage certain documents related to legislative business, including email, as public records. This webpage provides recommendations and links to resources to help legislators fulfill this duty.
Legislative business does not include political activity, personal matters, or non-legislative employment. For more information, please see the PowerPoint presentation entitled, "Electronic Communications & Public Records for Legislators" that was provided to legislators at the 2016 Orientation before session. It includes a discussion of the legal obligations, how the Legislative Services Division may assist you in the event of a public records request, and guidance on how to manage emails. This decision tree has been developed to help you determine whether your email is legislative business and subject to the public's right to know, or persona,l in which you may invoke your right to privacy.

Many documents and records related to legislative business are already managed by the branch:

  • official committee and floor session minutes and journals;
  • bills, resolutions, amendments, and votes;
  • interim committee agendas, briefing papers, and final reports.

It is largely your correspondence related to legislative business that you need to manage as records. This includes email correspondence from constituents, stakeholders, and lobbyists.

Recommendation #1

Create and maintain an email account specifically for your legislative business. This can be a personal account or state-administered mt.gov account. Limit your and others’ use of this account to legislative business as much as possible. For information about a state mt.gov account, please see State of Montana & Legislative Branch E-mail Services.

Recommendation #2

Inform correspondents that emails related to legislative business are public records and may be subject to release if requested by inserting a disclaimer in your email. Sample disclaimer:

Legislators are publicly elected officials. Legislator emails sent or received involving legislative business may be subject to the Right to Know provisions of the Montana Constitution and may be considered a "public record" pursuant to Montana law. As such, email, sent or received, its sender and receiver, and the email contents, may be subject to public disclosure, except as otherwise provided by Montana law.

For more information abnout your mt.gov account and for assistiance in creating a disclaimer, see Accessing your Outlook email account via the Internet 2017.

Recommendation #3

Manage your email correspondence as records. This can be accomplished in various ways depending on your email account. The branch can provide assistance in managing your email if you use an mt.gov account.

This Email Guidelines for Legislators brochure provides more information on how to manage your emails related to legislative business as public records, and describes the branch procedure for fulfilling public information requests. It also lists some considerations regarding using a personal account or an mt.gov account.

Legislative Services Division Procedure for Fulfilling Public Records Requests regarding Legislator Emails

  1. Requests for information are directed to the Executive Director or the Legal Services Director → if you get a request directly, you may refer the request to Susan Fox (406-444-3066, sfox@mt.gov) or Todd Everts (406-444-4023, teverts@mt.gov) for assistance.
  2. If the branch receives the request directly, you will be informed of the request. If you receive the request, the branch will review the request and may contact you for clarification or greater specificity.
  3. If the request applies to your private email account, you will be responsible for fulfilling the request; you may seek legal advice from the Legal Services Office or other assistance from Legislative Services Division.
  4. If the request applies to an mt.gov email account, the Executive Director will work with you and with branch staff to fulfill the request. The Legal Services Office will review any emails with you as necessary prior to delivering them to the requestor; you may also request a copy of all materials sent to the requestor.

Additional Resources:

Ethics Law. Title 2, chapter 2, part 1, MCA.

Everts, Todd M. Legal memo to Legislative Council. "Legislator Electronic Communications and Public Record/Right-to-Know Requirements" December 23, 2013.

Fox, Susan B. Fox. Research memo to Legislative Council. "Overview for Legislative Branch Records Management Policy Relating to Public Information Requests"

Greenberg, Pam. "The Private Life of E-Mail" State Legislatures magazine, NCSL, January 2010.

Montana Legislative Services Division. Accessing your Outlook email account via the Internet 2017

Montana Legislative Services Division. "Electronic Communications & Public Records for Legislators" (November 2016)

Montana Legislative Services Division. Email Guidelines for Legislators (Brochure). (November 2016)

Montana Legislative Services Division. Legal Division "Checklist - Public Right to Know - Legal Review Constitutional Consideration" (5/15/2014).

Montana Legislative Services Division. State of Montana & Legislative Branch E-mail Services 2017.

Montana Records Committee. State of Montana E-Mail Guidelines. September 2006.

Public Records Law. Title 2, chapter 6, MCA (complete revision Ch. 348, L. 2015.)

 


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Last Modified:
7/27/2017 1:58:54 PM