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School e-mail debate continues

Veronica Whitney

As local publisher Michael Cacioppo and Eagle County School District officials battle about who should pay for the cost of retrieving e-mails from the school district computer system, school officials still question if all e-mails are public records.

At the last hearing in the case, Cacioppo, publisher of the weekly Speakout, who declines to pay $1,700 for the cost of retrieving the documents, testified that there are ways for the school district to make the records available at a lower price.

“But the school district has no interest in doing that,” Cacioppo said.

The school district is requesting that Cacioppo pays the cost of retrieving thousands of e-mails he requested on Sept. 5, 2002, from the computer system. Cacioppo has charged that the district promoted an alleged boycott of Speakout advertisers through its e-mail system. The district repeatedly denied that allegation.

Testimony is now completed in the case. The parties will return to court for closing arguments March 31.

For Cacioppo, the documents are public record and should be available at no cost. But school district officials say if he doesn’t pay for the document search he requested, he will not get the results.

Rick Spitzer, the director of technology for the school district, said e-mails aren’t necessarily considered public record unless they fit criteria.

“We archived the items that we feel are important to public records. We don’t archive every e-mail,” he adds. “Public organizations decide what is public information. If something has to do with district policy procedures, it has to be maintained. I believe that Mr. Cacioppo thinks that all e-mails are public records.”

Under state law, Public (Open) Records, specifically states that public records are records “held by any local government-financed entity for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds,” Spitzer said.

“It does not state that all records, e-mail or paper, created or used by a government entity are public records,” he added. “In addition, some records, such as those related to personnel, students, medical, legal, academic and others, are not public records.”

No public official can decide what is a public record, said Tom Kelly, general council to the Colorado Press Association.

“If a document is available, a person should be able to have access,” Kelly said. “Under public law, these are public records and a public entity has to comply. Given the potential for massive amounts of records to be in the category of retrievable, the law is very impractical. It gives members of the public access to that data as much as in written format. Everything that’s retrievable is public record.”

For Cacioppo, the school district could put the e-mails on a different server that wouldn’t cost more than $1,000 and could easily be accessed by the public. Another way would be printing all e-mails

For Spitzer, however, the law states that documents that fall into the definition of a public record must be retained. All other documents that do not meet that legal definition can be disposed of.

“That is exactly what Eagle County School District has done,” he said. “We delivered the requested documents that existed and we cannot deliver documents that do not exist. In addition the law does not obligate a government entity to retain and/or deliver documents that are not public records.”

Eagle County School District receives or creates between 3,000 and 5,000 e-mails a day, Spritzer said. And rarely are those documents public records.

“For the few that are, it is easier to print them and place the printed copy in file cabinets along with other related documents,” he said. “Using that process allows the district to provide a copy of that public record at virtually no expense.”

It is more efficient and cost effective to maintain public records in a printed paper format as the school district has done in the past and continues to do, Spitzer said.

“We do not need to employ expensive solutions to meet that need,” he added. “Mr. Cacioppo also seems to believe that we must archive the documents in an electronic format. The law does not require that documents be retained in any specific format. We must deliver the content of the document. The content is what is the public record, not the format that it may exist in.”

Cacioppo’s request stemmed from the circulation of a flyer in April 2002 advocating boycott of the advertisers in Speakout. Following the flyer that was distributed to school district employees, former Superintendent Mel Preusser wrote an e-mail to them saying the district didn’t condone the circulation of this information and does not support such a boycott.

“It has been the contention of the district that this is the only e-mail that has existed related to this issue,” Spitzer said in the past. “But he (Cacioppo) insisted there were other files deleted in this case. Searching deleted files isn’t not a standard request for open records. We provided him with what we think is the law.”

Veronica Whitney can be reached at 949-0555, ext. 454 or at vwhitney@vaildaily.com.


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