Freedom of Information

New Hampshire updated its records law in 2008 to include as “governmental records” any written communication or other information, “whether in paper, electronic, or other physical form, received by a quorum or majority of a public body in furtherance of its official function, whether at a meeting or outside a meeting of the body.” RSA 91-A:1-a, III.

E-mail and other electronic messages are included in the definition of “public record.” 1 V.S.A. § 317(b) (Cum. Supp. 2008) (a public record is “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business”).

In 2008, the Vermont Superior Courts issued decisions in two cases under the Access to Public Records Act involving e-mail messages.

Jane Hansen spent four months after Hurricane Katrina delving into how two hospitals in New Orleans coped in the tense hours and days following the storm.

In the end, she wrote 22 stories for The Atlanta Journal-Constitution that ran in May and June under the title, "Through Hell and High Water."

The stories were accompanied by pictures taken by hospital staff during events and given freely to the newspaper.

The only people who brought up the Health Insurance Portability and Accountability Act throughout the disaster were in her newsroom.

How a steady stream of laws, regulations and judicial decisions have eroded reporting on important issues

By Jennifer LaFleur
The Reporters Committee for Freedom of the Press
© 2002, 2003 The Reporters Committee for Freedom of the Press. All rights reserved. No part of this booklet may be reproduced without the prior permission of the publisher. Additional copies of this report may be obtained from: The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209. Phone: (703) 807-2100.

Perhaps the most contentious issue in deciding whether certain communications are subject to state sunshine laws is whether they were transmitted or received as part of an official’s job. “‘Private’ or ‘personal’ e-mail messages ‘simply fall outside the current definition of public records,’” according to the Supreme Court of Florida. Just as public officials cannot escape open records requirements by having a private entity maintain physical custody of the records, private records do not become subject to open records laws simply by being in the custody of a public official.

Public records are defined as all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information and all other documentary materials, regardless of physical form or characteristics, having been prepared, or having been or being used, received, possessed or under the control of any public body. 5 ILCS 140/2(c). E-mail is treated as any other public record.

In some circumstances, defined either by the statute or by agency regulations, you are entitled to expedited processing of your FOIA request.

If you ask for expedited processing, an agency must grant or deny you faster processing within 10 calendar days. If the agency grants you expedited processing, it will take your request out of order and process it before other requests.