Since state Rep. Joseph Cervantes told me last week he believes federal law does state that e-mails are legal forms of writing, I’ve come across a few examples that seem to back him up.
Cervantes’ comments came in the context of me writing about New Mexico State University’s assertion that e-mail is generally not a valid way to request documents under the New Mexico Inspection of Public Records Act, which states that requests, to trigger the requirements in the act, must be written.
My frustration with that assertion by NMSU is part of a larger complaint I have with the university’s skirting of government transparency laws, which you can read about by clicking here.
Cervantes, an attorney who has worked closely with government transparency laws in his legislative role, disagreed with NMSU last week, telling me “there’s lots of federal law that says it is a writing.”
I’ve come across some examples. The federal Rules of Evidence state that “‘writings’ and ‘recordings’ consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photography, magnetic impulse, mechanical or electronic recording, or other form of data compilation.”
Surely, that includes e-mails.
A recent federal court ruling, citing a dictionary definition and the federal Rules of Evidence, found that the definition of “writing” includes “any expressive format, set down by hand or typewriting, mechanical or electronic transmissions,” and pointed out that, in today’s society, it’s common for parties to “bind themselves through mechanical or electronic media.”
In addition, a 2003 article published in American Law Reports, and written by John E. Theuman, examined a number of court cases related to the Statute of Frauds and found that the issue of whether e-mail is a legal form of writing is often handled on a case-by-case basis but, in general, e-mails that don’t include the typed signature of the writer aren’t valid, but those that do include a typed signature are valid.
As I’ve pointed out before, the Attorney General’s Office says that, though there is some ambiguity in the law, governments should treat e-mail requests for records as valid. Cervantes says he’ll introduce legislation to make that clear, if necessary.