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Attachment A <br />MEMORANDUM <br />TO: Bill Malinen <br />FROM: Scott T. Anderson <br />Eric J. Quiring <br />DATE: July 8, 2009 <br />SUBJECT: Retainer/Electronic Communications Policy <br />File No. 4002(1)-0341 <br />Based on the suggestions and discussion of Council Members, the Electronic <br />Communications Policy has been revised in the following manner. <br />1. The e-mail disclaimer provision found on page 3, lines 32-41, of the Policy has <br />been removed. Such a"Confidentiality Statement" is not legally required. Based on the <br />feedback from Council Members, we removed the provision as unnecessary and a slight <br />deterrent to public communications with Council Members. <br />2. The listserv provision found on page 4, lines 12-16, was revised to clarify that <br />Council Members may participate in listservs and electronic forums so long as they are <br />not doing so for impermissible reasons under the Open Meeting Law. As requested, the <br />revised provision addresses listservs in a positive statement, rather than solely as a <br />limitation. <br />3. Lastly, questions remain as to which electronic communications must be retained <br />by Council Members in order to comply with the record retention requirements found on <br />pages 4 and 5 of the Policy. As our April 8, 2009 memo explained, only electronic <br />communications that become part of an official City transaction need to be provided to <br />the City Manager for retention. Government records are defined to expressly exclude <br />data and information that does not become part of an official transaction. Minn. Stat. � <br />138.17, subd. 1(b) (4). Minnesota law does not define what constitutes an official <br />transaction of public business. However, an analysis of the phrase leads us to the <br />conclusion that an official transaction occurs only when the Council takes action on an <br />agenda item, such as entering into a contract or approving the expenditure of public <br />funds. <br />The obligation to retain the record is further limited in that records must be <br />retained only if they become part of the official transaction. In other words, even when a <br />Council Member communicates electronically about an official transaction, that <br />