Freedom of Information

E-mail messages can be obtained under the open records law just as any other record would be. McCullough Plumbing, Inc. v. McFarland, 288 Wis. 2d 657 (2005). They are subject to the same exemptions and privileges, such as the attorney-client privilege.

E-mail messages are also subject to the state’s records retention policies, but a failure to comply with the policies cannot be “attacked” under the open records law. State ex rel. Gehl and DSG Evergreen F.L.P., v. Connors, et al., 306 Wis.2d 247 (Wis. 2007).

In the creation of the Department of Homeland Security, a new statute was developed that would allow the department to withhold "critical infrastructure information." The Homeland Security Act criminalizes leaks of unclassified critical infrastructure information provided to the government by businesses who, in turn, are promised secrecy and immunity from prosecution for sharing the information.

Sen. Patrick Leahy (D-Vt.) called the move "the most severe weakening of the Freedom of Information act in its 36-year history."

Under Arizona law, records subject to public disclosure include items produced or reproduced on “electronic media.” A.R.S. § 41-1350. E-mail communications, including those stored on backup tapes, are required to be disclosed as public records. Star Publishing Co. v. Pima County Attorney’s Office, 891 P.2d 899 (Ariz. Ct. App. 1995). However, e-mail of a personal nature, such as grocery lists or e-mail messages between family members regarding dinner plans, is not subject to disclosure under the public records law. Griffis v. Pinal County, 156 P.3d 418, 421 (Ariz. 2007).

E-mail messages are treated the same as other paper records under the open records law. La. Rev. Stat. Ann. § 44:1; City of Pineville v. Aymond, 982 So.2d 292 (La. App. 2008).

This exemption is designed to prevent disclosure of properly classified records, release of which would cause some “damage” to the national security.

It covers records that are:

(A) specifically authorized under criteria established by an executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such an executive order.

The open records laws apply per the statute to all forms of records, including electronic messages. NDCC 44-04-18.

Six years after passing the Freedom of Information Act, Congress enacted the Federal Advisory Committee Act to open up to public oversight the advisory process of executive branch agencies. Since 1972, FACA has legally defined how advisory committees operate and has a special emphasis on open meetings. In 1976 Congress followed with the Government in the Sunshine Act, which requires that certain government agency meetings be open to the public. Modeled after FOIA, the Sunshine Act was intended to promote a transparent government and increase agency accountability.