The Oklahoma Attorney General’s Office recently released an opinion in which it was determined electronic communications on private equipment used to transact state business are subject to The Oklahoma Open Records Act. This opinion has the force and effect of law until such time it is overturned and state agencies and employees are bound to follow the opinion.
The opinion was sought by the Oklahoma Department of Libraries due to the increased use by state officials and employees of computers, cell phones, personal digital assistants and other personal electronic communication devices with their work. According to the opinion, e-mails, text messages and other electronic communications made or received in connection with the transaction of public business, the expenditure of public funds or the administration of public property, are subject to The Oklahoma Open Records Act and the Oklahoma Records Management Act – regardless of whether they are created, received, transmitted or maintained by government officials on publicly or privately owned equipment and communication devices, unless some provision makes them confidential.
The opinion stated the answer was based not on who owns the electronic communications equipment, but on whether the electronic communications created or received by public bodies or officials on that equipment are “records” as defined in The Oklahoma Open Records Act and/or the Oklahoma Records Management Act.
“State employees should be cautioned that the use of personal communications devices to conduct public business, while not improper, does generate records which need to be preserved and may need to be turned over upon request”, says Clyde McLendon, OPEA Employee Relations Coordinator. “According to the Attorney General, failure to comply with this opinion could result in someone getting sued and not subject to representation at public expense. Any questions or concerns regarding this issue should be directed to the proper agency officials”.
The opinion can be viewed in its entirety by visiting the Oklahoma Attorney General’s web page at www.oag.state.ok.us