4. Public matter on private e-mail

State business records generated on a personal cell phone or PDA are public records subject to review and disclosure, unless the Public Records Act permits them to be withheld for other reasons. See August 21, 2008, opinion (to Annette Kreitzer, Commissioner, Department of Administration) of the Alaska Attorney General regarding “Personal Use of Electronic Equipment,” AGO File No. 661-08-0388. The AG’s opinion makes clear that when an employee uses personally owned devices for business related calls, the employee has to expect that a state official or a court could be required to review all messages on these personal devices while seeking to locate and identify business related calls or emails. Id. at 13.

What is or is not “state business” or “public records” can still be subject to debate.  In a case filed against former governor Sarah Palin in state superior court, a Republican party activist sought access to communications to or from Palin, including communications found on personal accounts and devices. The case began as a complaint for declaratory and injunctive relief seeking preservation of public records, alleging that defendants Palin and the Officer of the Governor had a nondiscretionary duty under the Public Records Act and the Records Management Act to preserve as public records all e-mails—whether from state or private accounts—that pertain to official state business.  The plaintiff moved for summary judgment, asking for a ruling that e-mails whose contents involve state business that the governor sent from or received on her private e-mail account are public records regardless of whether the emails have been captured on a state computer server.  She also asked the court to enjoin the use of private email accounts to conduct official government business. McLeod v. Palin, Superior Court Case No. 3AN-08-10869 Civ.

The court ruled that not all emails relating to state business are necessarily “public records” under Alaska law. The court noted that in AS 40.25.220(3), the Legislature chose define public records as those items "that are developed or received by a public agency" and "that are preserved for their informational value or as evidence of the organization or operation of the public agency." The court acknowledged that the plaintiff could be correct that this reading might allow government employees to transform public records into non-public records simply by not preserving them as required, hindering government transparency and hiding decisions from public view.  Nonetheless, the judge said, it was not the court’s role to rewrite a statute with plain language.

The plaintiff also argued that a provision in the state public records law making it illegal to obstruct access to public records should be construed to prohibit the use by a state employee of a private email account to transact official business of the State of Alaska, particularly if the emails the employee sends or receives are not captured on a state computer server. (A policy memorandum from Governor Palin’s chief of staff attempted to address the situation by requiring state employees who use their person devices to conduct state business to send a copy to their government e-mail accounts to ensure that a copy resides on the state’s server; evidence concerning compliance with this is unavailable.)

 The superior court rejected this argument, finding that “there is simply no current statute that forbids the use of private email accounts to conduct state business.”  "The Legislature is free to take up the matter," the court wrote, "but as the statutes are currently written, private e-mail accounts may be used to conduct state business, subject to the same laws and regulations related to preservation as e-mails originating from state servers." On appeal, McLeod argued that this construction of the definition of “public records” improperly delegates to the Office of the Governor and all other state agencies unfettered discretion to decide whether to “preserve” a writing or other document, including, but not limited to, the emails that were the subject of her action. This issue is on appeal, See McLeod v. Parnell, Alaska Supreme Ct. Case No. S13861 (appeal from McLeod v. Palin, Superior Court Case No. 3AN-08-10869 Civ).  As the 2011 edition of the OGG went to press, the appeal had been argued, and the court’s draft opinion was being circulated.