While not all states have explicitly addressed whether e-mail records are public, notably, no state has wholly excluded e-mail from the range of records subject to its open government law. A few states, such as Colorado and Tennessee, have enacted laws that expressly state that public officials’ e-mail is subject to open records laws and may be subject to public inspection.
Attorneys general from some states, including Florida, have issued advisory opinions that e-mail involving official business is a public record. Others, including North Carolina, South Carolina and most recently South Dakota, necessarily include e-mail in state sunshine laws because the language specifies that it covers government records “regardless of physical form.”
Still other states have gone the judicial route to incorporate e-mail into the domain of public records, as citizens and journalists have brought lawsuits to compel disclosure. Ohio, for example, now defines e-mail under “electronic records” in its law. Its courts have said: “E-mail messages and correspondence are ‘documents, devices, or items’ under the first prong of the definition of ‘records.’” In Virginia, one court put it bluntly: “There is no question that e-mails fall within the definition of public records.”
Several states, such as Alabama, do not address e-mail in either their statutes or case law related to open records. But these states’ silence on the issue does not indicate a specific attempt by state officials to exempt e-mail and other electronic communications from sunshine laws. Finally, on the other end of the spectrum, a few states have taken steps to shield from records requests the e-mail communications between public officials and their staff members. Rhode Island, Arkansas, California, Louisiana, Massachusetts, Michigan and South Dakota exempt their governors from having to disclose e-mails under state sunshine laws.