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Avoid Accidental Electronic Quorums

Does a group email or text message count as a “meeting” under the SC Freedom of Information Act? The South Carolina Attorney General has concluded that it might. Since such a “meeting” would not be open to the public and properly advertised, it could violate the public meetings requirement of FOIA. 

A recent opinion of the attorney general, from February 18, 2021, stated that a “court may well hold an email chain in which at least a quorum of a public body’s membership discusses or takes action upon a matter over which the public body has [jurisdiction] constitutes a ‘meeting’ [under FOIA]. However, as the state appellate courts have not issued an opinion addressing whether emails can constitute a meeting, this conclusion is not free from doubt.” 

The issue is that electronic communication, such as email, could allow a public body to have a private group discussion about government business. For example, the city manager could send an email to the entire council. If one or more council members then use the “reply all” option to discuss the message, a court could find that the behavior was functionally identical to an in-person meeting. 

Sequential meetings 
The primary distinction is that an email exchange is not concurrent in the same way that an in-person meeting would be — happening all at one time. A conversation over email might last several days, or even weeks. The attorney general has noted that other states have developed the concept of a “sequential meeting” to address this distinction. A sequential meeting is a meeting that involves a quorum of the body, gathered over time. Under this concept, it is not essential that each member attend the meeting simultaneously, if the method of communication allows a sustained conversation.

Ultimately, whether a group email or text exchange among a quorum will be considered a meeting will depend on the facts of each case. 

As described by the attorney general, “[w]hen members of a public body use email to actively engage in discussion of a matter within the body’s jurisdiction, a court may well find an intention to come together and thereby satisfy the element of convening. In contrast, a court would likely hold passive receipt of email by itself is insufficient to establish an intent to deliberately assemble.”

Precautions to take 
Group emails and texts are efficient tools, but South Carolina municipalities should be careful to avoid turning a routine email exchange into a meeting. Here are some pointers:
  • When possible, avoid using the “reply all” feature in a message involving a quorum of the body, or forwarding responses among members of the body.
  • Limit emails and texts to informational exchanges. Discussions of policy and proposed courses of action should be confined to properly convened and noticed meetings.
  • Retain copies of emails and texts relating to official governmental business. Even in cases that do not rise to the level of a meeting, the related emails and texts are nonetheless public records subject to production under FOIA and retention under the Public Records Act. 
Group emails and texts may allow public bodies to conduct their business more efficiently, but may also create unexpected liabilities. Public bodies should use the same care with electronic documents as they would with physical documents and in-person meetings.