Public e-mail, cell phone accounts used for private communications

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. A Tennessee court in 2005 incorporated the same line of reasoning into its case law, relying heavily on the Florida decision.

Other reasons that a public official’s e-mail might be excluded from open records disclosure include lack of relevancy to the official’s job; exposure of intimate details about the person’s personal and private life; and limitations on the disclosure of some personnel records.

One Arizona opinion demonstrates a common approach to the threshold determination of when officials’ e-mail becomes an open record: The Arizona Supreme Court held that the state’s inclusion of e-mail in its open records law “does not encompass documents of a purely private or personal nature. Instead, only those documents having a ‘substantial nexus’ with a government agency’s activities qualify as public records.”

A Colorado court decided a case brought by The Denver Post with the finding that private cell phone records are not subject to requests under the state Open Records Act even if an official admits to using the phone for official public business. The newspaper sought more than 19 months of cell phone records that were thought to contain the phone numbers of people with whom Gov. Bill Ritter had discussed state business.

Another dispute occurred in New Jersey: Gov. Jon Corzine was initially ordered in May 2008 to turn over more than 700 pages of e-mail messages he exchanged with his former girlfriend Carla Katz, a labor union leader. Eventually, New Jersey’s intermediate appellate court held that executive privilege shields the communications from the public. On March 19, New Jersey’s highest court declined to hear an appeal from the plaintiff, a Republican state politician, ensuring that the e-mail messages would not be forcibly released.