With municipalities conducting more business electronically, the Eatontown Borough Council is looking into the protocols involved when council members use personal emails to communicate about borough business.
The issue was raised at the council’s Feb. 3 workshop meeting when Councilman Anthony Talerico Jr. questioned Borough Attorney Andrew Bayer about how the borough would handle Open Public Records Act (OPRA) requests for council members’ emails when they are sent from their cell phones or smartphones.
“Let’s assume that the email is OPRAable, and it’s very legitimate that they get it,” Talerico said. “There is a possibility that the public would not have access to it.”
According to Talerico, the issue with council members and other borough employees using their smartphones to send emails regarding borough business comes down to the municipality’s inability to capture and store those communications.
According to John Carbin, the borough’s information technology director, each council member is assigned a personal borough email account and is granted Web access through the municipality.
When a council member sends an email using his or her borough email address through a PC or laptop, those emails are passed through the borough’s email servers on to the intended recipient.
However, Carbin explained, when council members link their borough email addresses to their BlackBerry devices or other smartphones and send emails using the device, the emails are no longer passed through the borough’s mail server. Instead, those emails are passed through the council members’ wireless service providers and are eventually lost.
“If they are using their smartphones, it no longer is under my control,” Carbin said, adding that the only way council members could archive such an email message would be to send a blind copy to a personal email address.
For Talerico, the fact that the borough would no longer have the ability to retain these email messages sent using the borough’s email address poses a potential risk to the municipality.
“I don’t want to, now that we are moving into the next generation of toys and gizmos, … have the capability to basically have a whole series of communication that is never OPRA-able,” Talerico said.
Further complicating matters, Talerico said, is the question of what position the borough attorney would take in a situation when a council member uses a personal smartphone to send an email and a Superior Court judge requests the device as evidence in a potential investigation.
“If the BlackBerry is owned by the borough and you give it to an employee to use, it remains quite simple,” Talerico said. “If the Superior Court judge says you have to [turn it over], it’s quite simple.
“But if I own my BlackBerry, then it becomes this whole matter of, ‘Well, does Anthony turn his BlackBerry over? What if he doesn’t want to do it? Do we use the borough attorney to make Anthony do it? Or to defend Anthony from doing it?’
“So my solution is, I’ll simply never use it until [Bayer] says it’s OK,” he said.
According to Borough Administrator George Jackson, if a council member sends an email from a personal smartphone using a borough email account to another council member’s borough email account, the email would be archived in the recipient’s account.
However, Talerico pointed out, if a council member sends an email from a smartphone using a borough email account to a third party outside the borough, the message would not be saved on the borough’s server.
“The problem then is, what do we do to make sure that doesn’t happen?” Talerico asked. “And I think that’s a valid concern that we should look at. That’s my issue. I don’t know what the next procedure is.
“My whole concern is also, yes, granted, if I email [Bayer], it may not be subject to OPRA; that can always be appealed, but it may not be subject to OPRA. But my view is that it’s still subject to be maintained and someone could always overrule that decision,” Talerico explained. “I think we should maintain it and catalog it, because I don’t want people to think that I can send an email and it’s lost forever.”
Councilman Dennis Connelly shared Talerico’s desire to resolve the question, saying, “I will tell you we need to figure it out, because if I don’t answer [an email] on my BlackBerry, you are not getting an answer.”
In response to the concerns raised by Talerico, Mayor Gerald Tarantolo suggested that Bayer contact the New Jersey State League of Municipalities to ascertain if the lobbying group has information about regulations pertaining to the use of email through smartphones.
During the discussion, Jackson raised concerns about the extent to which borough employees must go to record communications they have with individuals the borough does business with.
“Part of the question is, how obligated are you to record and log in every communication that you have?” Jackson said. “If I write you a note, if I text-message you … if it has nothing to do with borough business, is it something that I have to worry about maintaining?
“Am I obligated to record and have at the ready anything I do between any person that I have dealings with for the borough?” he added. “I think almost where we are going here is, how much do we have to do?”
According to Jackson, the issue of whether the borough is responsible for archiving emails sent from an employee’s personal phone is new to the municipality.
In fact, Jackson explained, council members only began being issued borough email accounts within the last two years.
“The first thing I did when I [was hired] was, we created borough email addresses for our council people, because they were all using their [personal email accounts], and my fear was when [the OPRA] issue came up, we are going to be out there taking everyone’s computers for an OPRA request,” Jackson said.
“But how far do we have to go to make sure we are able to give people everything they want in the course of our business?” he added.