Access to electronic records

Type:

ESSAY

In 1996, the federal Freedom of Information Act was amended to specifically include electronic formats in its definition of a record. Known as “EFOIA,” the amendment required that records be provided in their electronic form if that format is "readily reproducible" as long as production would not "significantly interfere with the operation of the agency's automated information system."

Records that are requested in electronic form can consist of emails, spreadsheets and electronic versions of paper records like memoranda and policy decisions. Note that if a paper record would be exempt from disclosure under an exemption to the law, then the electronic record would be properly withheld or similarly redacted under the same exemption.

The federal government proactively publishes many records online through the websites like Data.gov which posts government spending records and individual federal agency reading rooms, which the law requires be maintained, like this one at the FCC. Federal records often found online include agency regulations, policy statements, staff instructions related to FOIA and frequently requested public records (though there is no set standard on what constitutes a frequently requested record). States like Georgia, Kentucky, Illinois, and others also have comparable sites where they post state spending information and other public records.

Metadata

The issue of public access to metadata – embedded information about a file like the file name, date of creation and author – has arisen in state and federal open records cases as electronic record requests become more prevalent. The government has been reluctant to release metadata in cases where portions of records are redacted for fear that the metadata can be used to recover the redacted portions of the documents. In February 2011, a federal district court in New York held in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency that “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.” The district court held that the government must provide the metadata to requesters because they had requested the documents in “native format,” which the court determined included the metadata.

Another issue raised in National Day Laborer and other cases has been who has the burden in requesting metadata -- is metadata automatically part of the record requested or must it be specifically requested in addition to the record? The federal district court held that metadata is a fundamental part of the record and is therefore included when an electronic record is requested. The court's recognition that metadata is an intrinsic part of an electronic document echoes the current trend in electronic discovery cases that, since 2007, have reversed the previously held belief that metadata had to be specifically requested and was presumptively irrelevant.

The government also argued that to comb through all the metadata looking for material that was exempted was so burdensome as to fail the "readily reproducible" standard under FOIA. The court held, however, that the “readily reproducible” standard in FOIA refers “only to technical ability or, at most, reasonable accessibility.” A request that would increase the burden of search and production by increasing the amount of information that would need to be reviewed for the possible application of exemptions does not qualify as not being readily producible.

State courts have also found metadata to be part of an electronic record. New York, Washington and Arizona courts have all held metadata to be included within a response to a request for electronic records.

Emails

Whether government emails are public or not is often a question of content and not the identity of the sender or receiver of the contact. The issue is often one of privacy and courts often agree that personal emails, even from government accounts, should remain private. This content question is the result of how the records law defines a public record – either by the content of the record or the location of its creation and storage. Generally, substantive email communication regarding public business will be regarded as a public record and subject to disclosure.

Content will often be determinative of whether or not emails will be held subject to disclosure regardless of whether it is sent from a private account, though that will complicate the issues because private accounts are generally thought to be exempt from disclosure. In fact, even emails sent from public accounts will be found private if the subject matter is found to be private as a Michigan appeals court determined in Howell Education Assoc. v. Howell Board of Education. The court held that, since the email communications concerned teachers in their private capacity as union members and not their official positions, the emails were private and not subject to disclosure.

Conversely, Alaska released more than 24,000 pages of emails from former Governor Sarah Palin, including many sent from Palin's private Yahoo account and the private account of her husband. The emails from the private accounts were deemed public because they passed through the state system when they were sent to state officials. The state Supreme Court is currently considering the question of whether the communications could be public without passing through the state system if it concerned public matters.

In North Carolina, for example, the state does not distinguish between private or public email accounts, noting that a public record is merely one created "in connection with the transaction of public business." The state therefore recommends that business done on a private email account be forwarded to a public email address to ensure proper retention practices are followed.

Social Media

Officials' increased use of social media platforms is raising the question of how these sites fit under state open records laws, especially in terms of records retention. The question that tends to arise is whether or not agencies are taking steps to retain posts and messages on their Facebook pages beyond the archiving done by the site itself. There is also a question of whether or not a public official's private Facebook profile or Twitter account is subject to public records laws. There is no set standard on the issue yet but a few states have begun to address the issue through best practice manuals or attorney general opinions. There are no state or federal laws that speak to social media usage yet.

A Florida attorney general opinion states affirmatively that a municipality's Facebook page would be subject the state's open records laws and posts must be retained in accordance with the law. In 2009, North Carolina established a set of best practices that suggests employees maintain a distinctly separate, public profile because "communication via agency-related social networking Web sites is a public record." The guidelines also suggests a means to manage and preserve content. Washington's best practices also recommend separate public and private accounts and advises on how to comply with the state's record retention requirements.

For a more detailed, state-by-state look at electronic records, consult our Access to Electronic Records guide. Also, [Check out our State Open Government Guide to see what the law is in [your state] says about access to electronic records]

Recent news articles from our website:

March 15, 2011 Senate Judiciary Committee discusses FOIA improvements

February 9, 2011 Federal judge orders release of document metadata

December 21, 2011 N.M. launches prototype of open government website

August 27, 2010 CJR sues to disclose N.Y. governor’s office’s e-mail messages

July 19, 2010 High court rules personal e-mail is not public record

May 13, 2010 Chicago mayor to post all public records requests on website

April 16, 2010 CIA director approved destruction of abuse tapes, emails reveal

Recent articles from our quarterly magazine, The News Media and the Law:

Spring 2011 Requesting metadata with electronic records

Winter 2011 Reprise of the machines

Winter 2011 States get social