Digital Communications-Beware of Creating/Destroying Public Records and Waiving Attorney-Client Privilege

 

It is impossible in our media age for school officials to communicate without the use of blackberries, tablets and cell phones. This update provides you with information to help you consider: (1) when use of these devices may create public records that must be preserved and (2) whether your district may inadvertently be waiving attorney-client privilege by including third parties in communications with your legal counsel.

Digital Communications as Public Records

(1) Is e-mail a public record? What about texts and voicemail?

Yes. E-mail, texts, and voicemail messages are all public records if they are created or received by or come under the jurisdiction of a public office, and document the organization, functions, policies, decisions, procedures, operations, or other activities of the school district. R.C. 149.011; 149.43. Your district must follow its records retention schedule in order to retain and destroy these public records.

(2) Is a text a public record when it was meant to be private?

Yes. Even if the text or other record was intended to be private (for example, a text between board members during a board meeting, a comment attached to a forwarded e-mail, or a superintendent texting the board president concerning dissatisfaction with an employee), if the communication was about school business it is a public record. If it is meant to be discrete and concerns school business, consider not making it a record.

(3) Can “personal notes” be destroyed?

Personal notes, which do not need to be kept as public records, are those that are: (1) created for one’s convenience; (2) not kept as official records of an office; (3) limited to one’s personal use and (4) not widely circulated or available to others. OAG 2008-019. All of these criteria must be satisfied for this exception to apply.

(4) Are digital communications automatically public records because they are created with a public e-mail account, telephone, or cell phone?

No. Public records document an office’s official business. Personal e-mail, text, and voicemail messages are not public record and may be destroyed at any time. R.C. 149.011. Conversely, the use of personal e-mail or a cell phone does not exempt records from Ohio’s public records act. Records created with your personal computer or phone may be public records and may not be destroyed if they fall under the definition of a public record, as stated in Question (1) above. The content of a record determines whether it is a public record, not the medium or device used to create it.

Communicating with Attorneys – Protecting the Privilege

(1) What communications between the district and its attorneys are confidential?

Communications made between the district and its attorneys as a part of the attorney-client relationship, and the advice given by its attorneys, are confidential and privileged communications, regardless of the means of communication. R.C. 2317.02.

(2) Does adding a third party to an e-mail communication or text remove the attorney-client privilege?

Yes. Adding a third-party to communications with your attorney (for example, copying a third-party on an e-mail to your attorney) very likely waives attorney-client privilege. When in doubt, call to ask your attorney about privilege concerns first.

(3) Does forwarding an e-mail communication or text from the district’s attorney to a third party remove the attorney-client privilege?

Yes. The same rule applies when sharing attorney-client communications with third-parties.

This Legal Update is intended as general information and should not be relied upon as legal advice. If advice is required, please contact us at (614) 222-8686 or via email:

Jessica K. Philemond (author) Jessica@sswlaw.com
Julia A. Bauer Julia@sswlaw.com
Derek L. Haggerty Derek@sswlaw.com
Julie C. Martin
Julie@sswlaw.com
Patrick J. Schmitz Pat@sswlaw.com
Gregory B. Scott Gregory@sswlaw.com
Donald C. Scriven Donald@sswlaw.com
Jennifer Stiff Jennifer@sswlaw.com
James K. Stucko Jim@sswlaw.com
Derek L. Towster Dtowster@sswlaw.com

 

1 Personal notes are not public records subject to the public records act, but still may be records that must be produced pursuant to discovery rules during a lawsuit. For this reason, school officials should strive to make personal notes factual, accurate and free from comments that are of a personal or editorial nature.

2 Personal notes are not public records subject to the public records act, but still may be records that must be produced pursuant to discovery rules during a lawsuit. For this reason, school officials should strive to make personal notes factual, accurate and free from comments that are of a personal or editorial nature.

© 2012, Scott, Scriven & Wahoff LLP