Freedom of Information

“Private communications” between a legislator and a constituent, including e-mail, are not public records. Communications, including e-mail messages, between a legislature and legislative staff, as well as contractors and consultants, are also confidential.

The law does not distinguish the treatment of electronic messages from any other public record and should be retained and disposed of as set forth in W.S. 9-2-411.

Confidentiality issues and access to police investigation records

Fall 2010 · Published by The Reporters Committee for Freedom of the Press · © 2010

For more information on police and personnel records, see the Open Government Guide on our website at www.rcfp.org/open-government-guide

This guide was researched and written by the Reporters Committee fellow Christine Beckett. Publication was funded by a grant from the McCormick Foundation.

The judicial branch is responsible for its share of "lost stories," as courts have found many ways to limit media access to important information. Most notably, access to immigration hearings has been virtually eliminated since Sept. 11.

From hearings for the alleged Washington, D.C.-area snipers to immigration hearings for foreign nationals the government has detained since Sept. 11, reporters trying to inform the public about the justice system are increasingly running into closed doors.

A public record includes “electronic or computer-based information,” Ark. Code Ann. § 25-19-103(5)(A), so the state open records law encompasses e-mail. Ark. Op. Att’y Gen. No. 2001-305. This opinion was issued by the attorney general prior to a 2001 legislative amendment revising the statutory definition to include this information, since the act was meant to include “data compilations in any form.” Ark. Op. Att’y Gen. Nos. 2000-096, 99-018 (electronically stored e-mail is public record).

The federal FOIA¹ provides access to all records of all federal agencies in the executive branch, unless those records fall within one of nine categories of exempt information that agencies are permitted (but generally not required) to withhold.

The definition of “public records” in the Freedom of Access Act has for some time included electronic messages. The FOAA includes within the definition of “public records” any “mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension.” 1 M.R.S.A. § 402(3). Additionally, “any document created or stored on a State Government computer must be made available” under the law. It is well settled in Maine that electronic communications, such as e-mail, are public records.

This exemption concerns records that are:

related solely to the internal personnel rules and practices of an agency.

This exemption covers two different kinds of records. “Low 2” applies to agency management or “housekeeping” records Congress decided would not be of interest to the general public. “High 2” applies to internal documents that would allow a requester to circumvent laws or regulations or to gain an unfair advantage over other members of the public.

E-mail communications are treated in the same fashion as other paper records under the open records law. Ohio Rev. Code § 149.011(A) and § 149.43(A); State ex rel. Wilson-Simmons v. Lake County Sheriff’s Department, 82 Ohio St. 3d 37, 693 N.E.2d 789 (1998). This is true regardless of whether the e-mail is on a government or private account. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391 (2008) citing Wilson-Simmons, 82 Ohio St. 3d 37.

How FACA works

Federal agencies and the White House itself seek advice from a multitude of private sources outside of government. FACA both governs the way these advisory committees function and opens them up to public examination.

FACA specifically applies to advisory committees “established” or “utilized” to advise the president or executive branch agencies. An advisory committee is defined as: