A growing number of decisions and statutes directly address whether electronic mail qualifies as a public record. In a few cases, e-mail communication is also an issue with regard to state open meetings laws because business is conducted via e-mail.

In Florida, e-mail messages made or received by a state agency in connection with the transaction of official business are public records. The same holds true in Arizona, Arkansas, Colorado, Maryland and Ohio. Arguments also may be raised that many states’ expanded definitions of public records now contain e-mail within their scope.

However, in Michigan, the lack of a specific statute has allowed two agencies to develop radically different e-mail practices. The University of Michigan has made e-mail private to the “fullest extent permitted by law.” Washtenaw County, where the university’s Ann Arbor campus is located, adopted a resolution to make county government e-mail open to public scrutiny.

The conflicting policies in Michigan illustrate the tensions between open records laws and privacy concerns. Open records advocates argue that e-mail is a natural product of the move toward “paperless” offices. Others argue that government employees use e-mail believing that the messages are private.

In December 2002, a circuit judge in Fredericksburg, Va., ruled that a group of officials violated the state’s open meetings law when they e-mailed each other regarding city business.

The Connecticut Freedom of Information Commission has proposed restrictions on use of e-mail. If the new rules are adopted, a majority of a board’s members would not be allowed to discuss the same subject using e-mail, because it would constitute an illegal meeting and thus exclude the public. The commission intended to reach a decision by Spring 2003.

The Florida Attorney General found that “the use of an electronic bulletin board by water management district basic board members to discuss matters that may foreseeably come before the basin board over an extended period of days or weeks, which does not permit the public to participate online, is a violation” of the state’s open meetings law. But the attorney general also has said that “a school board may use electronic media technology in order for a physically absent member to attend a public meeting of the board if a quorum of the members is physically present.”

It is not clear in all states whether open records laws apply to e-mail such as intra-office memos, letters from citizen-taxpayers, and government employee correspondence from an outside bulletin board.

On the federal level, the U.S. Court of Appeals in Washington, D.C., held that substantive e-mail communications are records under the Federal Records Act. The Federal Records Act covers the preservation of the transaction records produced by federal agencies. In Armstrong v. Executive Office of the President, the court ordered periodic review of electronic record-keeping practices at the National Security Council.

A federal district court in Tennessee ruled that a media plaintiff had no First Amendment right to city government employees’ Web browser history and "cookie" files, which store information about Web sites the user has visited. The court noted that it did not address whether the files would be available under the state Public Records Act. (The Putnam Pit, Inc. v City of Cookeville)