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Electronic mail ("e-mail"), a hybrid phone call/written correspondence televised almost instantly to your computer terminal, is now being used widely by students, teachers and administrators in school settings. E-mail is convenient, quick, and frees the user from the routine opening, handling, organizing and filing of written documents. A message appears on your screen, you read and file it in your head or send to a disk (which serves as a tiny file cabinet) and go about your business.

As you use this new technology, it is important to keep in mind you are still a public entity, doing public business, subject to the customary rules regarding public scrutiny. E-mail communications -- like other computer-maintained records -- may be subject to both the Illinois Local Records Act and the Freedom of Information Act (FOIA).

The Illinois Local Records Act governs the preservation and destruction of public records of most local governmental entities, including schools. The Act provides that all public records "made or received by, or under the authority of, or coming into the custody, control or possession of any officer or agency" cannot be destroyed or disposed of except as provided by law, with the prior written approval of the Local Records Commission. The same rules apply to e-mail messages as to paper documents.

E-mail messages are also subject to the Illinois Freedom of Information Act, which requires school officials to provide certain information upon request. If an e-mail transmittal is "saved" in some form, school officials may be obliged to allow inspection and to provide a copy if requested.

While the FOIA does not require disclosure of personal email messages directed to or received by officials or employees, it does cover records and materials that officials or employees must prepare or maintain as part of their official duties. As a practical guide, if the school hoard or administrator has authority to compel another official or employee to disclose the records in question, they are probably covered by the Act and subject to disclosure.

FOIA requires schools to make numerous categories of public records available to members of the public, and explicitly states that the physical form of the records is irrelevant. There are numerous exceptions to the Act, but all are based on content -- not form.

The Act defines the term "public records" to mean "all records, reports, forms, writings, letters, memoranda, hooks, papers, maps, photographs, micro-films, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary information, regardless of physical form or characteristics" prepared, used, received, possessed or under the control of the public body. Such records may include information stored on computer disk, cd-rom, tape, or other computerized method. (Freedom of Information Act, section 140/2, paragraph c) A Cook County court ruled in 1990 that computer backup tapes are covered by the Act. [AFSCME v. County of Cook, 136 I11.2d 334 (1990)]

Complying with the law is easier if you consider the implications of FOIA when creating e-mail files. The law requires that, if a record contains both public records and material that is exempt from FOIA, you must delete the information which is exempt and make the remaining information available. At least one court from another jurisdiction, in considering a request for records under public records disclosure law in that state, with provisions analogous to federal and Illinois law, ruled that the county had to release computer back-up tapes which contained both public and nonpublic records because the two had not been separated. {Star Publishing Co. v. Pima County Attorney's Office, 181 Ari 432 (1995)]

If the information meets the legal definition of a public record, and is not exempt under Section 7 of the FOIA, the school must find a way, if requested, to allow for inspection and, if requested, to provide the means for such inspection. Records stored electronically are a new form of "record." The Act requires that certain records be "made available for inspection." Although it is unclear what "available for inspection" means, based on available judicial decisions, it would likely be interpreted by a court to mean setting up whatever equipment is necessary to make records available for inspection. This may involve simply making copies or allowing the requesting party to review the material on a school computer.

Other points to bear in mind include the following:

The FOIA also requires the school to help individuals understand how information may be obtained from computerized records and how to comprehend computer print outs.

If requested in writing, the school must provide a copy of electronically stored data. Keep in mind that the requester may be required to pay a fee based on the actual cost of providing the copy. The cost of reproducing a diskette or tape might be more substantial than reproducing a paper record.

Since many computer records can be easily altered, it is wise to provide such for staff supervision if the information is viewed on the computer, in order to preserve the integrity of the record.

Also keep in mind that some documents in the form of film. tapes. books and computer software are protected by copyrights or patents and, therefore, may be exempted from copying under Section 7 of the Act.

Since school districts must maintain and make available certain public records, school boards should consider a policy regarding the creation and deletion of e-mail messages which constitute a public record.

In designing an e-mail system, schools may wish to include options to designate appropriate messages as public records when the message is created, then have those records saved separately from non-public records. If public records are separated in the system from the beginning and never stored along with nonpublic records, it will be easier to answer an FOIA request and to decide which records may be destroyed.

Terrence M. Barnicle and Scott F. Uhler are partners with the law firm of Klein, Thorpe and Jenkins, in Chicago and Orland Park. They may be reached at 312/984-6400; fax: 312/984-6444.