This paper was presented at the Association for Education in Journalism
and Mass Communication in Toronto, Canada, August 2004.
If you have questions about this paper, please contact the author
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Technology Outruns the Law:
Newspapers and the E-Mail Public Records Quagmire
Ron Rodgers
E.W. Scripps School of Journalism
Athens, OH 45701
Office: (740) 597-3083
Home: (740) 698-3333
e-mail: [log in to unmask]
Paper Submitted to the Newspaper Division of the
Association for Education in Journalism and Mass Communication
2004 AEJMC Convention
August 4-7, 2004
Toronto, Canada
Abstract
Technology Outruns the Law:
Newspapers and the E-Mail Public Records Quagmire
Governmental e-mail as the fillip for violations of the public's right to
know stems from confusion about when an electronic message becomes part of
the public record and when privacy – and the right of nondisclosure –
adheres to an e-mail sent to or from a public official. This paper looks as
where policy is heading as reflected in recent court rulings and in the
discourse of commentary by legal and non-legal officials in the trade,
periodical, and daily press.
Technology Outruns the Law:
Newspapers and the E-Mail Public Records Quagmire
Introduction
In March 2001, in the Avonworth School District, north of Pittsburgh, the
school board president sent e-mails to other board members that would have
been bound to cause an uproar if she had presented them at a public
meeting. In them she proposed putting undercover substitute teachers in
school bathrooms to catch students smoking and paying rewards to students
for turning in other students they see violating rules. The board member –
an attorney – who revealed the e-mails and the general counsel for the
Pennsylvania Newspaper Association said the e-mails violated the
Pennsylvania Sunshine Act. But Donald Owen, an attorney for the
Pennsylvania School Board Association, was not so ready to agree. "No one
knows for sure if it's a violation of the sunshine law," he said. In fact,
Avonworth was not the only district unsure of how the law should be
interpreted. Owen said he had received questions about e-mail from about
100 districts from all over Pennsylvania.[1]
Indeed, as more and more of the business of government is being done
electronically, violations of the public's right to know have been legion
and a wealth of such violations – often reflecting the confusion and
uncertainty among elected officials about the law – have been reported by
both the trade press and newspapers – whose reporters and editors are often
left with no other recourse than an expensive call to an attorney and often
lawsuits. Assuming that, for the most part, public officials – whether
elected or administrative – do not intend to flout the laws regarding
public records and open meetings, two elements appear be at the crux of
this issue: (1) confusion and uncertainty about when an electronic message
becomes part of the public record; and (2) as a subset of this, confusion
and uncertainty about when privacy – and the right of nondisclosure –
adheres to an e-mail sent to or from a public official. So, the question
arises: Where does policy appear to be heading as regards these two
elements as reflected in recent court rulings and in the discourse of
commentary by legal and nonlegal officials in the trade, periodical, and
daily press.
In summary, two things should be noted. For one, the author's interests in
this subject stems from his more than 20 years in the newspaper business in
which he watched new media technologies incrementally subsume the paper
documents he once leafed through at the police station and city hall and
that also appeared to truncate elected officials' discussions of important
issues at public meetings. The question still unanswered when he left the
business to enter academia was: Where do journalists and the public stand
as regards public records and public meetings in the face of a growing
tsunami of cyber communication?
But outside of the author's own interests, surveying the state of access
to governmental e-mails is important if only to set a benchmark from which
later research can determine progress toward maintaining the marketplace of
ideas – the lifeblood of our very democracy. It would be difficult to
dispute the efficacy of using e-mail as a source of interesting and
important stories. For example, in July 2002, the Minneapolis Star Tribune
acquired e-mails from the Centers for Disease Control and Prevention that
outlined evidence that infections from cadaver tissue used in orthopedic
transplants were more widespread than previously thought; in June 2003, the
Milwaukee Journal Sentinel obtained an internal e-mail that showed an audit
found more than 1,400 backlogged cases of Social Security disability
claims; and in August 2003, The New York Times used a series of e-mails
disclosed under the Freedom of Information Act to show that because of a
breakdown in communication, the leader of the shuttle mission management
team did not know about three requests for spy satellite images of the
damaged shuttle before it disintegrated during re-entry.
Method
This study looks at the work of press freedom scholars and surveys relevant
court decisions since the turn of the century dealing with e-mail as
regards public records and open meetings. Space constraints do no allow an
exhaustive explication of the disputes and debates about e-mail in the past
three years, so this survey looks at a representative sampling of reports
in the daily and trade press, which often reports on disputes that never
reach the legal system, or if they do, they are settled in some way before
a ruling or a judicial record is officially documented. It also looks at
the work of relevant freedom of information advocates. What can be garnered
from news reports and the work of advocates are unofficial comments of
those working actively to advance policy and the law and comments by legal
officials about elected officials and the public caught in the snare of
confusion and uncertainty surrounding e-mail as a public record and as the
aegis of open meetings – all of which reflects the discourse now going on
nationally and certainly the ground from which settled policy may one day
emerge.
To perform this survey, an attempt was made to locate published judicial
opinions in which a court has dealt with this issue since the turn of the
century. Using the Boolean search parameters "e-mail or electronic and
public record or open meetings or freedom of information," the Lexis-Nexis
Academic Universe[2] case law categories and the Media Law Update[3] were
searched for relevant cases at the trial- and appellate-court levels. Also,
to overcome as much as possible the limitation that many access-to-records
cases are settled at the trial court level without official judicial
documentation, the Lexis-Nexis general news category was also searched
using the same key words.
Findings
Briefly, this study found that many elected officials in many states lack
guidance that is clear and not open to interpretation or whim. And because
of that lack of clear guidance – even after more than a decade that has
seen the growing using of e-mail to do the public's business – there is
still much confusion and uncertainty out there. However, it should be
noted, most violations of the letter or spirit of the law appear to be
unintentional. Instead, the theme that seems to run through much of the
alleged misuse of or access limitations on e-mail public records reflects
what Richard Neustadt and Ernest May describe as "unreasoning from
analogies."[4] Specifically, many officials, when confronted with how to
deal with such new technologies as e-mail, tend to place them in a category
akin to examples drawn from their own experience – in this case the
evanescence of oral "private" conversations over the telephone or even as
memos that are read and then quickly tossed. In fact, even in the face of
the contrary fact that e-mail is being used to do the public's business,
this notion of privacy grounded in orality seems to often adhere.
Review of Literature
The scholarly literature has been largely mute about the issue of e-mail as
a public record and as the aegis of a public meeting. Michelle Bush and
Bill Chamberlin do touch on the subject briefly in the larger context of
access to electronic records in general, noting that as of the mid-1990s
just four states – Arizona, Colorado, Florida, and Maryland – had
specifically said that e-mail is open to public viewing.[5] In addition,
Susan Dente Ross affirms that the issues surrounding governmental use of
new communication technologies "are neither clear or simple. Twenty- or
30-year-old state open meetings laws have not kept pace with rapidly
changing technology and fail to address directly whether or when the
electronic exchange of information among members of government boards
creates a 'meeting' to which citizens must have access."[6]
Still, much of what we know about the status of this issue is reflected in
the states' freedom of information statutes – often e-mail is not even
mentioned – a handful of sundry legal opinions and court rulings and in the
daily and trade press, which often reports on disputes that enter the legal
system but are settled in some way before a ruling or a judicial record is
officially documented.
All 50 states have open-meeting laws, and each is different. For example,
many states allow governmental entities to completely close meetings to
discuss such things as personnel issues or property purchase appraisals.
Others, like Oregon, will actually allow reporters to attend such meetings
as long as they use nothing from those meetings in a story. But for the
most part, the public's business is done in the open at meetings that are
advertised with an agenda listing what is to be discussed and acted upon.
And it is at those meetings the public is allowed to listen to and
participate in the discussion. But if elected officials meet over e-mail,
then the public is shut out of the process. In addition to open meetings,
the public also has the right to look at documents deemed public records.
But more and more of the public's business is being done online as the use
of e-mail grows exponentially. And at the same time, many government
officials are confused by which of their e-mails should be classified a
public record and which are personal and private. The rulings, opinions and
laws offer little guidance, hence the confusion and the seeming recalcitrance.
According to research in 2003 by the Marion Brechner Citizen Access Project
at the University of Florida, most states' rules on how to deal with
e-mails tend toward limiting access to those records. The project's survey
of the public records laws in the 50 states and the District of Columbia
revealed that 45 of those laws fail to mention e-mail specifically. In 37
of the 45, the statutes do not specifically mention e-mail, but "more
general statutory language and court opinions make it possible for the
public to gain access to these records. In another eight states, experts
said laws without e-mail provisions may preclude most citizen access, the
study found."[7] In addition, Phillip Taylor noted that journalists cannot
expect that "First Amendment press freedoms online equate with press
freedoms offline" because of a "dearth of Internet case law."[8]
Electronic FOI
In their study that traces the history of the federal Electronic Freedom of
Information Act, the landmark 1996 overhaul of the then 30-year-old Freedom
of Information Act – commonly known as the 1996 Electronic Freedom of
Information Act (E-FOIA) – that brought it into the computer age, Martin
Halstuk and Bill Chamberlin note that the time it takes the law to catch up
with technology creates an interval in which the public's right to know is
restricted.[9] They are talking about the disparity between the immense
amount of information loaded onto the federal government's computers and
the many years restrictions were put on the public's access to that
information because little in the way of statutory or case law clearly
defined that information as a public record. Access to those records was
largely controlled by often contrary court rulings.
One reason for that may well be that the Freedom of Information Act, while
it opened federal records in paper form to public purview, it remained
silent on the issue of computer technology. Of course, when Congress first
began to discuss such a law in 1955, the federal government owned just 45
computers.[10] And in 1966 when FOIA was enacted, Bill Gates' and Steve
Cases' billions were still many years off.
Before E-FOIA, agencies routinely withheld information on computers
because, they said, the FOIA did not require release of such records in
that form. In fact, before E-FOIA, the public had no stated right to
computerized records. Ultimately, policy about access was essentially set
by judges, who often gave contrary opinions about whether computerized
records were open or closed.[11]
The passage of E-FOIA in 1996 settled a dispute about access to electronic
records on the federal level. The new law requires agencies to provide
information in the format those seeking the information want – including
electronic format if the agency is able to. Would that the understanding of
what constitutes a meeting on the local and state level and the public's
access to electronic records such as e-mail were as clear. Often, access
and what is defined as a meeting are determined by local officials or even
judges who make unilateral interpretations of the law. Tomorrow, a
different official or different judge may make a different interpretation.
For example, at one point in Michigan, because no statute specifically
spelled out the guidelines on e-mail, the University of Michigan made
e-mail private to the "fullest extent permitted by law," while Washtenaw
County, Michigan, officially resolved to make county government e-mail open
to public scrutiny.
E-Mail as Phone Conversation or Document?
Indeed, examples of such unilateral and differing interpretations of the
law – and the concomitant reluctance to release records that have been
deemed public – are not rare, even in states where it would seem the law
has been clearly defined. Just look to Florida, which some would say has
the nation's most comprehensive public-records law. As early as 1996 – the
year E-FOIA became law – that state's attorney general ruled that
government agencies may only purge e-mail that lacks "sufficient legal,
fiscal, administrative or archival value."[12] Even so, confusion about
interpretation of the public-record law appeared to continue to exist. In
September 2000, while the Tampa City Hall and the County Center used a
special software to save and preserve nearly every e-mail because,
officials said, of the state public-records law, the nearby Hillsborough
County School District regularly disposed of all its e-mail. "Anything
that's transmitted over e-mail is not of a substantive nature, they're like
phone calls,'" said Tom Gonzalez, an attorney for the district.[13]
In fact, in calling for broadening the exemptions to releasing public
records, some officials across the country have used the analogy that
e-mail is no different than a conversation over the phone, an act of
communication not covered by law. For example, a New Orleans Democratic
representative to Louisiana's state House, Edwin Murray, has urged that
constituents' e-mails be statutorily excluded from the public records act.
Equating e-mails to phone calls to lawmakers, which e-mail is rapidly
replacing, Murray said: "Things you talk to your constituents about
shouldn't be in the public record."[14] And in August 2001 in Texas, where
the attorney general had ruled just five months before that e-mails are
public records, Arlington city officials filed a lawsuit that says they are
not because council members deal with city business only at public
meetings. They were attempting to keep the e-mails of a councilwoman from a
local resident who had requested them. Don King, Arlington's assistant
attorney, pretty much summed up what a lot of local thinking is about
e-mails as an open record when he said: "This whole question of e-mail is
evolving. It's fairly new. Most of what used to go across the telephone
lines was voice conversations. What used to be an unofficial casual
conversation is now recorded electronically."[15]
Similarly, another skirmish in Utah involved whether e-mail is a document
to be preserved or simply ephemeral conversation. In March 2002, four news
organizations sued Gov. Mike Leavitt for deleting e-mails sought in an
open-records request. Leavitt said he could not provide the e-mail because
as a matter of policy, he would delete them, no matter the content. The
governor's attorney said he had told Leavitt that he should regularly
destroy his e-mails, many of which are personal. "We believe we are abiding
by the law. We basically view e-mail much like a conversation," Leavitt
spokeswoman Natalie Gochnour said.[16]
The irony here is that Leavitt promoted Utah as a "wired" state and did
almost all of his correspondence by e-mail. But by destroying his messages
rather than turn them over to archivists, historians or the media, the
lawsuit charged, the governor was destroying public records. The state's
Government Records Access Management Act requires that all records produced
or received by public officials be preserved, and the definition of a
public record includes "electronic data or other documentary materials
regardless of physical form." Leavitt is depriving the public of "its
constitutional right of access to information concerning the conduct of the
public's business," the four news organizations said in their suit.[17] The
case dragged on until October 2003, when the news organizations agreed to
drop their lawsuit after Leavitt – a week before leaving to head the U.S.
Environmental Protection Agency – agreed to change his practice of
routinely deleting his e-mails. The out-of-court agreement requires the
governor and his staff to regard every e-mail as a public record under the
state's Government Records Access and Management Act – unless it falls
under one of the act's exclusions.[18]
Whether e-mail is more like a phone call than a written letter was also at
the heart of a debate in September 2003 about retaining and access to
e-mails to and from the Kettle Moraine School District in Wisconsin – a
state where representatives of the state's public school boards at one
point considered but then rejected a resolution to seek keeping school
board e-mails secret from the public.[19] Nine months later, because of
what Ken Cole, executive director of the Wisconsin Association of School
Boards, called a lack of guidance, Kettle Moraine was struggling with how
to deal with e-mails. At one point the district – on the advice of its
attorney – began considering a policy that would destroy all e-mails after
90 days, a proposal that promptly drew fire from the media. Cole said the
Kettle Moraine case points to the need by school districts for direction
from the state. "We need some legislative guidance about this stuff because
it's fraught with pitfalls and difficulty because people are going to be
making exceptions and interpretations," Cole said.[20]
In another education-related case, after University of North Carolina
administrators read through his e-mails, criminal justice professor Mike S.
Adams joined a chorus of other university faculty nationwide calling for
laws that would ban the public from inspecting their electronic messages
because they are part of the open and spontaneous discourse at the heart of
democracy. "I guess that people would make the argument that taxpayers own
my e-mail. They own the stalls in the bathroom, and decent people don't go
prying into them," Adams told The Chronicle of Higher Education.[21]
Merging technologies make it murkier
Still, one wonders if even the most up-to-date guidelines would be enough
given the rapidly changing technology. And no better example of this is in
Louisiana, where the mayor of New Orleans and about 65 of his aides
constantly communicate with BlackBerries, a handheld device that combines
cellular phones with keypads that allow the user to send text messages.
Some BlackBerries also have limited, wireless access to the Internet.
Apparently, because they are constantly "talking" over their BlackBerries
and because BlackBerry messages are transitory, the mayor and his staff
view communication through the text messages to be as evanescent as oral
speech. The issue is further complicated by the fact that depending on
their preference, a BlackBerry user can send e-mail messages or short text
messages through cellular phone technology – and both are largely
identical. However, no permanent record of the text messages is created.[22]
This issue came to light when the New Orleans Brass, a minor-league hockey
team, sued the city over use of the Municipal Auditorium. It sought, among
other documents, e-mail and BlackBerry messages to and from some city
officials and the firm that manages the auditorium. Orleans Parish Civil
Court Judge Roland Belsome ordered the city to hand over the documents,
including the e-mails and text messages. However, those text messages had
vanished. Brass attorney Jane Booth said that essentially means city
officials are destroying public records on a daily basis. Judge Belsome
agreed, and ordered the city to produce both e-mail and BlackBerry
messages. "The court further notes that since BlackBerry communications can
be retrieved by e-mail, such communications can and will be producible to
public-records requests. As such, public officials are encouraged to
implement procedures to properly maintain records of these communications."[23]
However, according to a May 11, 2003, article in the Times-Picayune, while
city officials say they had already been saving e-mail messages, they had
no plans to save BlackBerry messages because, as city attorney Sherry
Landry said, they are "akin to cell-phone conversations," which means they
are not covered by public-records laws. "If I tape a telephone conversation
that concerns the business of the city, under the statutes, that tape is a
public record and has to be preserved. But if you and I have a telephone
conversation and I don't tape it, we have not created a public record, so
there's nothing to preserve."[24]
Of course, Booth disagreed. "A telephone conversation is not writing.
Blackberry messages are writing. That's the distinction. The law says if
you're going to communicate by the written word, it's a public record, and
choosing not to preserve it is a violation of the act."[25]
Electronic Meetings
In April 2002, the Massachusetts Secretary of State's office ordered
Belmont city officials to release e-mails that a resident says show the
town's Noise Bylaw Committee tried to do the public's business out of sight
of the public. Gladys Unger, chairwoman of the committee, said she did not
realize the e-mails were public records nor that discussing issues of
substance over e-mail violated the state's Open Meetings Law. "We certainly
weren't intentionally using e-mail to skirt the Open Meeting Law. It just
is a very efficient tool for discussing the fine points of the noise bylaw
proposal we have been drafting. We certainly never took a vote on any issue
via e-mail and couldn't if we wanted to because not all of our members have
e-mail," Unger said.[26]
In a commentary in the Richmond (Virginia) Times Dispatch, two reporters
for the News & Advance in Lynchburg, Virginia, Brenda Edson and Patrick
Lynch discussed the extensive use of e-mail by some Lynchburg School Board
members to debate – out of the public's eye – the censoring of an anatomy
textbook. This, mind you, in a state where in 1999 the attorney general
said that "three or more public officials can't hold 'electronic meetings.'
"[27] The point they make that "Some say that type of debate should go on
where the public can hear it. Others say officials need the chance to hash
out opinions without fear of scrutiny" – pretty much sums up the bifurcated
mindset of much of elected officialdom.
For example, Edson and Lynch note, when asked if he had participated in
e-mail discussions, board member Sterling Ward said he never had. "I
thought this was what school board meetings were for, to discuss issues
openly in front of the public. Honestly, I think you need to be open with
your comments. I don't think it's fair to the community." But, board member
Lee Greever was of a different mind. "It's stifling to creativity," he
said. "The only other alternative is, we have to come into every meeting
cold, not having discussed anything."[28]
However, about two years later, this uncertainty and confusion was
clarified to a degree in the wake of a case that some freedom of
information advocates say has national implications. In December 2002 a
judge in Fredericksburg, Virginia, found that the mayor and two City
Council members violated open-meetings laws by agreeing on the council's
appointee to the regional library commission via e-mail. Open-government
advocates told The Washington Post that the ruling helped redefine old open
meetings laws in an era of new communication technologies. Harry Hammitt,
publisher of Access Reports, a national newsletter about open-government
law, said he believed the ruling was the first to distinctly say the use of
serial e-mail discussions can amount to a public meeting that must conform
to open-meetings laws requiring publicizing notice and keeping minutes.[29]
In addition , Charles N. Davis of the Freedom of Information Center at the
University of Missouri noted that many other states have attempted to deal
with this technological quandary by issuing legal opinions that warn that
serial e-mail discussions may well be the equivalent of a quorum meeting.
"Open-meetings laws are more about what's being discussed and by whom. It
doesn't matter so much the form," Davis said.[30]
Possibly because of that ruling, in December 2002 the Sherborn,
Massachusetts, Board of Selectmen established a new policy on the use of
e-mail between elected officials after one selectman used electronic
messages to reverse a decision that had been made in a public meeting,
sparking two months of debate about the state's Open Meetings Law and how
much the members of the public have a right to know about the work of their
government. Under the new policy, all e-mail correspondence among selectmen
and town officials must be archived in a central file as public records.[31]
More recently, in February 2003, the Public Affairs Research Council of
Louisiana, an independent watchdog group, urged lawmakers in that state to
set clear guidelines on keeping and allowing public access to e-mail
messages to and from public officials and bodies. The council's president,
Jim Brandt, told the Times-Picayune, that his group "wants to establish
that e-mails are public record," excluding "frivolous" or "junk" e-mail.
"Many public records are being destroyed. E-mail also gives members of
public bodies the ability to conference electronically and form a consensus
on issues outside of the public's view," Brandt told the House Committee on
House and Governmental Affairs.[32]
What is Public? What is Private?
One thing the 1996 update of the Freedom of Information Act did was to
define e-mail between government officials as a record that must be saved.
However, failing to be clear at even the federal level, it did not define
which e-mails were public and which were private. Still – and most likely
because of that ambiguousness – that issue of privacy has become such a
worry on the federal level that in April 2001 President Bush announced that
he had quit sending e-mails to his family because of fear they could be
made public. "I don't e-mail anymore out of a concern for the freedom of
information laws, but also concern for my privacy," the president told a
group of newspaper editors.[33]
That e-mail provision in the act stemmed partly from case law that had
already defined e-mail as a federal record.[34] In that case, Scott
Armstrong, then head of the National Security Archive, sued in U.S.
District Court in Washington, D.C., under the Federal Records Act and the
Presidential Records Act to stop the government from destroying e-mails and
backup tapes. In August 1993, the court ruled that e-mail and word
processing files must be managed as government records.
In Florida during the summer of 2001, the privacy vs. public record issue
of e-mail arose in relation to one of the biggest news stories in years –
the presidential recount. And once again, the issue became one of
confrontation over differing interpretations of the public-records law as
it relates to e-mail. This time, in addition to the attorney general's 1996
ruling regarding e-mail, the then Florida Attorney General Bob Butterworth
issued an opinion stating that everything contained in a state computer –
including personal e-mail – is a public record. The only way it would not
be, he said, is if the Legislature exempted it.[35] The opinion stemmed
from Florida Secretary of State Katherine Harris' reluctance to turn over
all the e-mail surrounding the upheaval after the 2000 presidential
election. Her attorneys said some personal e-mail had been removed from two
computers used over the 36 days the presidential recount took place.
Everything state law defines as public records was preserved, they said.
State law does not say personal e-mail on a state computer is a public
record, Harris' attorney said, raising the issue of privacy surrounding
so-called personal e-mails – an argument at the heart of another Florida case.
In February 2002, the Florida Supreme Court began considering a case
brought by the Tampa Tribune, which sought access to e-mails gathered by
former Chief Judge F. Dennis Alvarez, who was investigating sexual
harassment allegations against a former circuit judge.[36] Alvarez had
denied access to those records in 2000, holding that they were not official
judicial records and therefore did not need to be released. Here again – at
the highest levels of a state government – the issues of the public's right
to know versus the right to privacy become grist for debate. While the
Florida solicitor general told the court that the state constitution's
rules on public records require the e-mails to be made public, several
justices asked how deep into an individual's private life such requests can
go. Would her e-mail dinner invitation to a fellow justice become a public
record, one justice asked. Both the solicitor general and the Tribune's
lawyer said the constitution's open-record rules covered only official
business.[37] Ultimately, in February 2003, the high court ruled the
e-mails were judicial records generated in the course of Alvarez's official
courthouse business, and a week later they were released to the public.[38]
Similarly, in July 2003, an appellate court in San Diego, California, in
Holman v. Superior Court ordered the city to disclose the e-mail and phone
records of a former employee to a local newspaper that was investigating
her hiring and departure. A three-judge panel of the appeals court held
that public interest in the cell phone and e-mail records outweighs privacy
interests of those who communicated with the former employee. "Here, the
governmental function the information sought to illuminate was a sharply
focused one: what functions were being performed at government expense by a
person who allegedly had little or no experience and training for the
position for which she was being paid," Justice Alex McDonald wrote on
behalf of the court.[39]
Workplace privacy
On the other hand, the issue of privacy in the realm of the workplace had
an entirely different outcome in a case out of Colorado – In re Board of
County Commissioners, County of Arapahoe. In July 2003, that state's Court
of Appeals ordered a lower-court judge to reconsider his decision to
release 570 sexually explicit e-mails that Arapahoe County Clerk Tracy
Baker had sent to his girlfriend, Assistant Deputy Clerk Leesa Sale,
through the county-owned computer e-mail system. Those e-mails are exempt
from public release, the court ruled, because Baker and Sale had a limited
expectation of privacy. Access to the e-mails became an issue after a
former deputy clerk accused Baker of creating a hostile work environment
and misusing county funds as a consequence of his affair with Sale. In
January 2003, District Judge Thomas Levi ruled the public had the right to
access 622 e-mails between Baker and Sale the county had uncovered during
its investigation. The county had argued that the e-mails should be open to
inspection because county equipment was used to send them. Baker and Sale
had argued that releasing them would violate their right to privacy.
Ultimately, the appellate court agreed with Baker and Sale, and allowed
release of only those e-mails that might help reveal why Baker promoted
Sale, gave her pay raises, and continued to retain her even after it was
discovered that she had once been accused of embezzlement.[40]
The appellate court's ruling sent a confusing signal, according to freedom
of information activists. For example, Steve Zansberg, an attorney for the
Colorado Press Association, noted that Baker and Sale had signed paperwork
that declares the county has the right to disclose the county's e-mail.
"The court's finding that they have a legitimate expectation of
nondisclosure is difficult to square with that," Zansberg told the Rocky
Mountain News.
In another case that left freedom of information advocates perplexed, A
Washington state appeals court ruled in December 2000 in Tiberino v.
Spokane County that the e-mails written on a work computer by a government
employee fired for writing an excess number of personal e-mails are public
records under the state's Public Records Act, but because they are of no
legitimate concern to the public, they are exempt from disclosure. The
three-judge panel concluded that the e-mails to family and friends, which
contained expletives and vulgarities, and discussed intimate matters,
"would be highly offensive to any reasonable person; therefore, they are
personal and unrelated to governmental operations, and are exempt."
"Certainly, the public has an interest in seeing that public employees are
not spending their time on the public payroll pursuing personal interests.
But it is the amount of time spent on personal matters, not the contents of
personal e-mails or phone calls or conversations, that is of public
interest," the court said.[41]
Finally, in a rather strange Catch-22 ruling in May 2002 involving the
issue of privacy, Florida's 2nd District Court of Appeal upheld a lower
court decision saying the city of Clearwater did not have to release the
e-mails of two employees to the St. Petersburg Times because they are
"personal" and unrelated to official business.[42] And that, ironically,
was the point. The Times was trying to determine if the two employees spent
time they were suppose to be doing the city's business working on their own
personal storage business.
"We make no assumptions about the specific government employees who were
the target of the Times' investigation," the court said in its ruling.
"However, a government employee who spends most of the day working on
private matters and personal correspondence can currently respond to a
public records request by declaring that the records of it are not
'public.' " The courts are not responsible for putting all e-mails in
government computers under the aegis of public records. That is the
Legislature's job, the justices said.[43]
After that ruling, the Florida Attorney General Charlie Crist, a longtime
supporter of open records law who intervened on behalf of the Times, asked
the appellate court to refer the issue to the state's highest court "as an
issue of great public importance."[44] But in a defeat for the Times and
for First Amendment advocates, the Florida Supreme Court ruled in September
2003 that public employees do not have to turn over private e-mail to the
public – even if it was generated on government computers at work.[45] The
justices, however, did not address who should decide what is public. What
makes this decision especially jarring for First Amendment advocates is
that it occurred in a state where, the St. Petersburg Times noted, "there
is a constant tension regarding a sweeping public records law that makes
virtually all of the paperwork used by government employees public record."[46]
The essence of this ruling is that even as more and more of the business of
government is being done electronically, the media and the public's right
of oversight is restricted with the enjoinder that government workers
should be trusted to police themselves.
"It's a disturbing turn of events, certainly. Sometimes that trust can be
abused," said Barbara Petersen, president of the First Amendment
Foundation.[47]
Attorney General Crist agreed, telling the St. Petersburg Time: "If the
taxpayers pay for the computers, they ought to have the right to see what's
on them."[48]
Discussion and Conclusion
The paradox in the above case is that a 1967 Florida public records law
made public virtually all paperwork used by government employees. But a
review of rulings and disputes outlined in the trade and daily press
illustrates that the context of governmental work products and memos
mediated through the atoms of ink and paper is entirely different from the
context – and assumptions – surrounding electronic communications mediated
through pixels. Therefore, said attorney George Rahdert, who argued the
Times case before the Supreme Court, the public records law needs to be
updated to reflect that communication revolution. "The problem is public
records law is kind of paper-bound. It doesn't really account for the way
that people are communicating important information," Rahdert said after
the ruling.[49]
Still, the media in these and their many other confrontations with
government officials believe they stand on strong ground. It is ground,
they say, supported by interpretations of the First Amendment that say the
public has a right to know what its officials are doing because ours is a
government governed by "we, the people" and the public's right know in
which the media's role is that of informing the public and acting as a
watchdog for official malfeasance.
Confusion Continues
Even so, on the state and local level disputes and confusion continue about
access to e-mail even as e-mail more and more becomes a vital source of
information about what public officials are doing and how they are making
their decisions. So, for some time now and for some time into the future,
the public's right to know has been and will be restricted to one degree or
another by unclear laws and contrary court rulings and legal opinions,
confusion and ignorance about what the laws and rulings mean, and outright
flouting of those same rulings and opinions often grounded in notions of
privacy.
Philosopher Alexander Meiklejohn, whose writings have been woven into
Supreme Court opinions, says successful self-government requires "that
unwise ideas must have a hearing as well as wise ones," he says.[50] "The
primary purpose of the First Amendment is, then, that all citizens shall,
so far as possible, understand the issues which bear upon our common life.
That is why no idea, no opinion, no doubt, no belief, no counterbelief, no
relevant information, may be kept from them."[51] Meiklejohn was not an
absolutist when it came to the First Amendment. He believed that if an
expression does not contribute to successful self-government, then that
right to freedom of expression must be balanced with other rights.
And that proposition goes to the crux of the private vs. public dispute
that often arises when the media attempt to access e-mail records. At the
state and local level, the issue is often extremely muddled. As noted, even
the federal E-FOIA does not define what is private and what is public. But
Vincent Blasi, the well-known proponent of the media's watchdog role – he
calls it the "checking value" and traces its tradition from colonial
pamphleteers through Jefferson and Madison through several Supreme Court
decisions – insists that within the overlapping ambits between what is
public and what is private, public officials' right to privacy must shrink.
That's because, he notes, while powerful private interests are held in
check by the government, there is no corresponding check on what government
does. Look to what we learned from the Pentagon Papers, he says. Therefore,
Blasi says, "the exercise of power by public officials needs to be more
intensively scrutinized and publicized than the activities of those who
hold even vast accumulations of private power."[52]
Consequences
Blasi, writing in 1977, seems almost prescient about the harm done to
governmental efficiency when it comes to disputes about e-mail records.
Simply put, the proposition is that systematic scrutiny and exposure of the
activities of public officials will produce more good in the form of
prevention or containment of official misbehavior than harm of various
sorts such as diminution in the efficiency of public service or weakening
of the trust that ultimately holds any political society together.[53]
In May 2001, in Loudon County, Virginia – the home of America On-Line –
members of the Board of Supervisors decided to quit using e-mail in their
discussions about how the county could slow growth so no one can charge
them with trying to circumvent the open-meetings laws. They abandoned the
efficiency of their e-mail despite the fact that in January 2001, the state
attorney general ruled that e-mail exchanges – even among several officials
– do not violate open-meetings laws, a ruling backed by the Virginia
Freedom of Information Advisory Council.[54] Maria J.K. Everett, the
council's executive director, told The Washington Post that there is a
distinction between e-mail exchanges and an official electronic discussion
group that automatically sends messages to all participants. Such a
discussion group would violate Virginia's open-meetings laws, Everett said.[55]
Another elected official who decided it was better to give up the
convenience and efficiency of electronic mail was New Berlin (Wisconsin)
School Board President Richard O'Connor, who read a newsletter from the
National School Boards Association warning of the legal problem school
board members could face if they use e-mail to do official business.
O'Connor immediately asked his fellow board members to desist from using
e-mail to communicate with one another before they were accused of
violating open-meetings and open-records laws. "I am very aware of
open-meetings laws," O'Connor said. "But, before, it never really struck me
that e-mail was in this mess, too."[56]
Solutions
But do O'Connor and other public officials really need to run scared from
the shadow of technology? Three years before O'Connor read that newsletter,
the Mequon Common Council – in his own state of Wisconsin – began working
on a policy for using e-mail while doing the public's business. Council
members were concerned that if they used their home computers for official
business, personal information on their computers would become a public
record. One solution they came up with called for creating city e-mail
accounts that officials could use remotely.[57] And along those same lines,
in Redmond, Washington, – the home of Microsoft – the City Council voted in
June 2002 to require council members to use the city's e-mail system for
public business – not their personal e-mail accounts – so the public e-mail
could be kept separate from the private and then be downloaded and saved
just like any other public record.[58] That's also the policy now in Bend,
Oregon, according to the former government reporter for The Bulletin, Anne
Aurand. Bend City Council members all have city computers and city e-mail
accounts and are also obligated to copy all council e-mail to the city
recorder, who opens her computer to reporters whenever they want to inspect
the e-mail.[59]
So, in Mequon, Redmond and Bend do we have the seeds of a solution to the
confrontations over access to e-mail records as public officials begin to
bifurcate their private lives from their public lives and then overcome the
notions of privacy often adhering to doing the public's business? The
technology for creating public accounts for the public's business is out
there and readily available. But if disparate court rulings, a confusion of
legal opinions and downright fear are left to be the impetus, it will be a
long time before officialdom is finally all on board. Do the states need to
emulate the federal government and create their own versions of
E-FOIA? Just as the federal government did, they need to update their
open-records and open-meetings laws so they address 21st-century
technology. These laws need to define what is a public record and what is a
quorum meeting in cyberspace. They must require automatic preservation of
electronic public records. They must have some teeth to punish
recalcitrance. And then, the contents of these new laws must be clearly and
adamantly communicated down the food chain to the lowest level of government.
NOTES
[1] Rhonda Miller and Matt Dereno, "Sunshine Act Said to Cover School
Board's E-Mail Writings," Pittsburgh Post-Gazette, 14 March 2001, accessed
on Lexis-Nexis 8 December 2003.
[2] http://web.lexis-nexis.com/universe.
[3] http://www.rcfp.org/news/. Media Law Update is a biweekly newsletter
published by the Reporters Committee for Freedom of the Press.
[4] Richard E. Neustadt and Ernest R. May, Thinking in Time: The Uses of
History for Decision Makers, (New York: The Free Press, 1986), 34.
[5] Michele Bush and Bill F. Chamberlin, "Access to Electronic Records in
the States: How Many are Computer Friendly?" in Access Denied: Freedom of
Information in the Information Age, eds. Charles N. Davis and Sigman L.
Splichal, (Ames, Iowa: Iowa State University Press, 2000), 41.
[6] Susan Dente Ross, "Access and New Technology: Teleconferencing,
Telecommuting and Public Access," in Access Denied: Freedom of Information
in the Information Age, eds. Charles N. Davis and Sigman L. Splichal,
(Ames, Iowa: Iowa State University Press, 2000), 66.
[7] "Study Suggests State Records Laws for E-Mail Inadequate, UF News, 19
May, 2003, accessed at
<http://www.napa.ufl.edu/2003news/governmentemail.htm> 5 December 2003.
[8] Phillip Taylor, "Lost in Cyberspace," The News Media & the Law," 26
(Spring 2002), accessed at
<http://www.rcfp.org/news/mag/26-2/cov-lostincy.html > 5 December 2003.
[9] Martin E. Halstuk and Bill F. Chamberlin, "Open Government in the
Digital Age: The Legislative History of How Congress Established a Right of
Public Access to Electronic Information Held by Federal Agencies,"
Journalism and Mass Communication Quarterly, 78, (no. 1, 2001), 57.
[10] Lisa Leiter, "Data Flowing Freely Onto the Info Highway," Insight on
the News, 19 August 1996, 20.
[11] Halstuk and Chamberlin, "Open Government in the Digital Age," 57.
[12] Sarah Scheitzer, "E-Mail Deemed Not Public Record at School System,"
St. Petersburg Times, 11 September 2000, accessed on Lexis-Nexis 12
November 2003.
[13] Ibid.
[14] Ed Anderson, "Public Scrutiny of E-Mail Opposed," Times-Picayune, 13
February 2003, accessed on Lexis-Nexis 26 October 2003.
[15] "Texas City Sues to Keep Councilwoman's E-Mails Private," Associated
Press, 21 August 2001, accessed on Lexis-Nexis 8 December 2003.
[16] Dan Harrie, "Media Firms Sue Leavitt Over E-Mail Destruction," Salt
Lake Tribune, 20 March 2002, accessed on Lexis-Nexis 8 December 2003.
[17] "News Media Sue Utah Governor for Deleting E-Mail," Associated Press,
20 March 2002, accessed on Lexis-Nexis 8 December 2003.
[18] "News Organizations Drop Lawsuit Against Leavitt," Associated Press,
30 October 2003, accessed on Lexis-Nexis 8 December 2003.
[19] "School Boards Reject Idea to Make E-Mails Secret," Associated Press,
22 January 2003, accessed on Lexis-Nexis 8 December 2003.
[20] Amy Hetzner, "Rules On E-Mail Stump Districts," Milwaukee Journal
Sentinel, 12 September 2003, accessed on Lexis-Nexis 8 December 2003.
[21] Andrea L. Foster, "Your E-Mail Message to a Colleague Could be
Tomorrow's Headline," The Chronicle of Higher Education, 21 June 2002,
accessed on Lexis-Nexis 8 December 2003.
[22] Gordon Russell, "Ripe for Debate," Times-Picayune, 11 May 2003,
accessed on Lexis-Nexis 8 December 3003.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Caroline Louise Cole, "Belmont Officials to Turn Over E-Mails;
Citizen Says Computers Used to Avoid Open Debate," Boston Globe, 21
April 2002, accessed on Lexis-Nexis 8 December 2003.
[27] Brenda Edson and Patrick Lynch, "Is Private E-mail Open to the
Public? Richmond Times Dispatch, 17 September 2000, accessed on Lexis-Nexis
8 December 2003.
[28] Ibid.
[29] Michelle Boorstein, "Governing by E-Mail was Illegal, Judge Says,"
The Washington Post, 22 December 2002, accessed on Lexis-Nexis 16 December
2003.
[30] Ibid.
[31] Eun Lee Koh, "E-Mails to be Put On Record," The Boston Globe, 5
January 2003, accessed on Lexis-Nexis 8 December 2003.
[32] Ed Anderson, "Watchdog Urges State to Let Public See Official
E-Mail," Times-Picayune, 13 February 2003, accessed on Lexis-Nexis 8
December 2003.
[33] "Privacy Worries Spur Bush to Cut Off E-Mail to Family," Houston
Chronicle, 8 April 2001, accessed on Lexis-Nexis 12 November 2003.
[34] Armstrong v. Executive Office of the President, 1 F.3d 1274, 1283 n.7
(DC Cir. 1993).
[35] Steve Bousquet, "Records Issue Pits Butterworth Against Harris," St.
Petersburg Times, 20 July 2001, accessed on Lexis-Nexis 12 November 2003.
[36] David Karp, "Judges' E-Mail Privacy at Issue," St. Petersburg Times,
7 February 2002, accessed on Lexis-Nexis 10 December 2003.
[37] Ibid.
[38] Christopher Goffard, "Chief Judge May Have Known of Harassment," St.
Petersburg Times, 22 February 2003, accessed on Lexis-Nexis 16 December 2003.
[39] "Media Can See E-Mail, Cell Phone Records of Former City Employee,"
News Media Update, 16 July 2003, accessed at <http://www.rcfp.org/news/>
16 December 2003.
[40] Sara Huntley, "E-Mails to Stay Private," Rocky Mountain News, 18 July
2003, accessed on Lexis-Nexis 10 December 2003.
[41] "Public Worker's Private E-Mails are Exempt From Disclosure,"
E-Business Law Bulletin, February 2001, accessed on Lexis-Nexis 16 December
2003.
[42] Christina Headrick, "Court Rules E-Mails are Not Public
Records," St. Petersburg Times, 11 May 2002, accessed on Lexis-Nexis 16
December 2003.
[43] Ibid.
[44] Jennifer Farrell, "Workers' Private E-Mail Is Just That," St.
Petersburg Times, 12 September 2003, accessed on Lexis-Nexis 10 December 2003.
[45] Ibid.
[46] Lucy Morgan, "E-Mail as Public Record Debated," St. Petersburg Times,
5 June 2003, accessed on Lexis-Nexis 6 July 2003.
[47] Farrell, "Workers' Private E-Mail Is Just That."
[48] Ibid.
[49] Ibid.
[50] Alexander Meiklejohn, Free Speech and Its Relation to
Self-Government, (New York: Harper & Brothers, 1948), 15.
[51] Ibid, 88-89.
[52] Vincent Blasi, "The Checking Value in First Amendment Theory,"
American Bar Foundation Research Journal. 3 (Summer 1977) : 541.
[53] Blasi, "The Checking Value in First Amendment Theory," 552.
[54] Michael Larris, "Loudon Unplugs E-Mail on Government Plan,"
Washington Post, 10 May 2001, accessed on Lexis-Nexis 10 December 2003.
[55] Ibid.
[56] Corissa Jansen, "Beware E-Mail, Boards Learning; Messages Among
Members May Violate Meetings Laws," Milwaukee Journal-Sentinel, 3 September
2001, accessed on Lexis-Nexis 10 December 2003.
[57] Ibid.
[58] Brian Moore, "Council Must Use E-Mail, New Policy Says," Seattle
Times, 19 June 2002, accessed on Lexis-Nexis 10 December 2003.
[59] Anne Aurand, e-mail interview, 30 June 2002.
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