Freedom of Information

The Open Public Records Act includes in its definition of a “government record” any information “stored or maintained electronically.” N.J.S.A. 47:1A-1.1.

E-mail exchanged between Gov. Jon Corzine and his former union-leader girlfriend is protected by the executive privilege, and the New Jersey Supreme Court upheld the order protecting it from release. Wilson v. Brown, 404 N.J. Super. 557 (2009).

The definition of public records broadly includes “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained.” § 14-2-6(E), NMSA 1978. E-mail is subject to disclosure under the law.

If you choose to file a request for mandatory declassification review rather than file a FOIA request, check with the agency that has the records you seek to find out who is designated to receive these requests. Each agency with classification authority designates an official to receive them.

In a letter to that official, describe the records you want as specifically as you can and ask the agency to declassify them.

Although practices vary by agency, requests for electronic communications are generally not controversial in Washington and are treated the same as any other records request.

In June 2007, the attorney general adopted Model Rules for Electronic Records. The rules are non-binding “best practices” for state and local agencies to follow in fulfilling requests for electronic documents. Among other things, the rules recognize that requests for electronic public records should be addressed in the same manner as requests for print records.

A college football game illustrates the strange interpretations of HIPAA. The star quarterback is sacked during a play and 50,000 spectators and a national TV audience see his leg snap. But the coach will not talk about the player's injury because he thinks HIPAA prevents him.

In reporting on universities -- whether the topic is football or campus crime -- journalists are finding the Health Insurance Portability and Accountability Act an obstacle to gaining records and information.

Congress passed the Driver's Privacy Protection Act in 1994 to protect personal information in driver records. The DPPA requires states releasing driver information to ensure that the release is authorized by the driver and that the information will be used only for specifically authorized purposes, such as law enforcement and insurance coverage. Rep. Barbara Boxer (D-Calif.) hoped to prevent stalking when she introduced the measure, but it has stopped reporting in many states that relied on driver records.

Whether states conclude that electronic communications constitute open records, public meetings or both, the sheer volume of such records raises essential issues regarding their maintenance.

A recent Ohio opinion stated that a state law that would give government employees the authority to delete work-related e-mail was unreasonable because it would “authorize the unfettered destruction of public records,” and that if such messages are deleted in violation of statutory obligation, it would constitute a violation of Ohio open records laws.

Iowa’s General Assembly has not yet passed its much-discussed open records reform legislation. Thus, the boundaries of electronic records access will continue to be determined by Iowa Code Chapter 22. Meaningful access to such records, however, is practically beyond the reach of most requestors because state government is increasingly imposing heavily restrictive “review” charges.