Electronic communications under sunshine laws

Government officials are more frequently conducting business through e-mail, cellphone calls, text messages and other forms of electronic communication. Accordingly, states including Colorado, Tennessee and Florida have moved to include records of these electronic communications as items subject to request under local Sunshine laws.

Courts have developed more precedent on e-mail than any other form of electronic communication. Many state courts have considered the classification of a series of e-mail exchanges as an open record or meeting. Some have also heard cases regarding the overlap of official and private communication in both government-provided and personal accounts. That point is at issue in one Alaska citizen’s lawsuit to compel disclosure of official e-mail Gov. Sarah Palin transmitted through a private Yahoo! address. On the other side of that coin, Iowa Gov. Chet Culver recently announced that he will release e-mail sent in his first two years of office using private computers and non-government servers that were used to conduct state business.

Requests to access public officials’ text messages and cell phone records have also generated litigation in recent years. The Detroit Free Press and The Detroit News won a lawsuit to compel disclosure of text messages that eventually revealed that Kilpatrick and one of his aides lied under oath. That led to 99 days in jail for Kilpatrick, who pleaded guilty to obstruction of justice in the matter.

Computer-based instant messages in government offices are not immune from open records requests, either. Although the messages usually have to involve discussion of public business to be considered public records, in cases of potential corruption or improper behavior, even private instant messages have been released. In 2008, for instance, Ohio Attorney General Marc Dann was impeached and eventually resigned after the Columbus Dispatch requested records pursuant to a sexual harassment case and inadvertently uncovered instant messages and e-mail that revealed an affair between Dann and his scheduler.