The county is making changes to its policies regarding cell phone and computer usage, following a legal review of the current policies in the interest of weighing employee privacy with potential public records requests and legal ramifications.
In a recent meeting, county attorney Annette Chancy Starling provided the board with memorandums regarding her review of both the county’s Cellular Phone and Communications policies in response to concerns raised by the Sampson County Board of Commissioners earlier this year about privacy rights and public information requests.
Board members, at a previous planning session, asked Starling to review the policy for potential legal concerns with regard to the access of an employee’s phone records.
Starling recommended the county staff make changes to the policies to put employees on alert that any phone calls, text messages and email from county-owned devices could be considered public records and would be reviewed for such. Additionally, conducting county business from a privately-owned device for which the county paid a stipend could also be the subject of a public records requests.
The board subsequently voted to authorize Starling to work with county staff to make those changes.
Under the county’s current Cellular Phone Policy, employees that qualify for a cell phone may choose between being issued a county-owned cellular device or receiving a phone stipend from the county.
“When the county owns and pays for the phone,” Starling stated, “the public agency’s bill is a public record.”
However, an issue may arise when an individual is using his personal cell phone for county business and receiving a stipend for such use.
“In this case, if there is a public records request for the phone bills or phone records, it may be difficult to produce these records because they are not in the possession of the county and because the employee may believe he has privacy rights that protect these documents from being produced as public records,” Starling stated.
She cited case law in the area before suggesting changes to the policy so the county could comply with potential public records request but protect itself from violating privacy rights of employees when complying with such requests.
“First, the Cellular Phone Policy should clearly notify employees that their phone bills, phone records and text messages made on a county-owned cell phone or on a privately-owned cell phone for which an employee receive a stipend may be subject to public records law requests and are subject to inspection by Sampson County at any time,” Starling noted.
For those employees that opt to receive a stipend from the county for using their personal cell phones, they should be required to submit a copy of all phone bills to the county, the county attorney stated. Those employees may identify allpersonal calls that appear on their bill so that these calls can possibly be redacted in the case of a public records request, she said.
“Making these changes will lessen employees’ expectation of privacy and will prevent surprise should the county be required to produce employees’ phone records and bills,” Starling said. ” Likewise, it will make it easier for the county to comply with any public records request because all existing phone bills and records will be in the county’s possession.”
As with cell phones, the same applies to email and computer usage.
All emails sent in connection with county business are subject to public records laws request and possible legal discovery requests, whether or not the emails are sent on the county email system or an individual’s private email system and regardless of who owns the computer involved in the transactions.
The county’s current Electronic Communications policy alerts individuals that all communication sent across the county’s systems are not private and are subject to inspection, however Starling said that should be taken a step further.
“The county should update its Electronic Communications system to alert individuals that all communications sent in connection with county business, whether or not a communication is sent via a county system, are subject to inspection and may be classified as a public records and may be required to be produced pursuant to a public records request or legal discovery,” she said.
It was important that all county employees are made aware going forward, Starling said.
“Making individuals aware of the possibility of these communications being subject to review will lessen their expectations of privacy, thereby lessening the chance these individuals’ privacy rights will be violation, and lessening the county’s legal liability,” she stated.
Chris Berendt can be reached at 910-592-8137 ext. 121 or via email at email@example.com.