A&A: Requested Email Failed to Disclose BCC Recipients

Q: I am a school district trustee with concerns about a fellow trustee. The district received a PRA request for an email sent from the board member’s personal email to his school email. It was blind copied (bcc’d) to others.

The PRA request asked for the complete email, including recipients. An affidavit, signed by the board member says he provided email is an unaltered and true copy. But it is not. The email is provided and a second page is included. The second page is only a list of recipients. What was provided is not what an unaltered and true copy looks like. An unaltered and true copy will have all the Bcc recipients in the header of the email. It appears he is trying to circumvent the PRA. What is the process for getting an unaltered and true copy of the email?

A: As I understand it, the scenario is that (1) someone submitted a PRA request to a school district for a copy of a particular e-mail, including recipients; (2) the school district responded by producing a copy of the e-mail that did not disclose bcc recipients (and did not disclose the fact that bcc recipients were not reflected in the copy that was produced); (3) the school district produced the copy based on an affidavit of the individual who sent the e-mail (school district trustee), attesting to the fact that the copy produced was an “unaltered and true copy.

This scenario raises some interesting questions, including whether the PRA requester was entitled to a copy of the e-mail that included the bcc recipients and what the obligations of a fellow trustee might be if he or she believes the PRA was violated and/or that the affidavit is untruthful.  Unfortunately, the latter issues fall beyond the scope of the issues we can address through this service.

As for the first issue, one question would be whether a print-out of an e-mail would necessarily reflect bcc recipients.  If it did, then it seems clear that the agency could only redact such information from the copy produced if it justified the redaction under an exemption to PRA disclosure.  If it did not (which in my experience is sometimes the case), then there might be more of a grey area, at least as to whether there was some sort of bad faith failure to disclose.  Certainly the practice more consistent with the PRA – and at least arguably required by the PRA – would be to disclose the fact of the bcc recipients to the requester and either identify the recipients or justify the non-disclosure of those names under a PRA exemption.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.