'Private' e-mails on school computers? No such thing (September 2007)
Ready for a pop quiz this month? Well, you’re in luck. Here goes: How are school e-mails and bill-boards alike?

I know what you’re thinking: “Paul, that’s stoopid, and so are you. They ain’t nothin’ alike!”

Well, I can’t conirm or deny the first part of that reaction, but e-mails and billboards are, indeed, at least similar in one, very important respect. They’re both capable of being viewed by the public. By law.

The law I’m talking about is the Arkansas Freedom of Information Act, or FOIA, which makes all documents retained by a public entity available to the public, with a few exceptions. E-mails are not one of those exceptions. And when the FOIA refers to “documents,” it doesn’t limit itself just to paper documents, but documents in any form, including electronic documents.

Okay. So what? The “so what” is that you’re wrong if you think that when an e-mail is sent from one person to another and the contents are deleted by the recipient, it’s gone. For reasons that I don’t even pretend to understand, e-mails never seem to go away. Even if they’ve been deleted from your inbox and from your “deleted items” file, some Bill Gates wannabe can find it, print it out and embarrass you with it. Without going into any detail, you wouldn’t believe some of the school e-mails I’ve seen produced in response to an FOIA request, or from the tech guy just checking on something when he stumbled across...it.

A few “don’ts” to keep you out of trouble
So, what does all this mean? Well, from a practical standpoint, it means that you had better not send an e-mail that you don’t want anyone other than the recipient to see. At least, don’t send it from or to a school (or other public entity’s) computer. Do your naughty stuff from home. And to a home.

From a legal standpoint, it can get serious. If someone is using school computers for his (or her) naughty business, the contents can, and may, be located, printed and used for discipline of that employee, including termination. Most of you have computer-use policies that put everyone on notice that they shouldn’t use their school computers for other than school business, and those policies explain that there are possible consequences for a violation. So, people can get fired for that, and the newspapers, television stations and radio people can make an FOIA request, get a copy of what the employee is in trouble for, and publish it everywhere.

As this column is being written, there is active litigation in Arkansas regarding an employee of a county and his purported expressions of admiration for a woman, with his affection for her being, apparently, requited. She has sent him e-mails, and one or the other – or both – has sent titillating photos. There is an attempt on the part of the county (and, I presume, the employee) to withhold the more lurid of the e-mails on the basis that they are personal and have no relation to county business. Monkey business, I suppose, but not county business. No final decision has been made at this time.

Cynicism alert!!! Judges, being elected, might be believed, by some, to give every beneit of the doubt to, say, a newspaper’s FOIA request, knowing that the newspaper could support or sabotage his re-election based on how he rules on FOIA cases.

Finally, this is a caution to all board members and, especially, administrators: DO NOT, under any circumstance, prepare discipline documents for an employee to be sent by e-mail. Those things are confidential. We may make the argument that the confidential portions of a given e-mail should be withheld or redacted, as the law provides. However, we have no confidence that e-mails will not be required to be produced in totol, regardless of the contents (see county cautionary tale, above).

In addition, when a paper write-up is placed in an employee’s personnel file, we have some confidence that those without access to the personnel files will not see the writeup. We can have no such confidence when it comes to e-mails. Those things seem to go everywhere, just with the touch of the wrong key. Or, if someone has a password he shouldn’t, especially students. About the same as renting a billboard on the freeway.

Previous Article (June 2007)- Background checks more than we bargained for

Next Article (November 2007)- Executive session: Mays, shalls, and shall nots

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Related Downloads (pdf):
ASBA Handbook for Arkansas School Board Members