State law — developing, but far from settled

On a smaller scale, the body of law on government electronic communications across the states has been growing slowly over the past few years as e-mail use and mobile device communication have become more prevalent in government offices. The appropriateness of releasing the content of these communications is especially crucial, as the release of text messages exposed serious corruption in the form of perjury in a case that cost Detroit taxpayers more than $8 million. That 2008 case led to the ouster and prosecution of former Detroit Mayor Kwame Kilpatrick, and a Pulitzer Prize for the Detroit Free Press.

A majority of states now recognizes that public officials’ electronic communications should be processed and released in the same way as hard copies of official communications. Of course, states differ on the range of electronic communications they say should be exempt from records requests. A few states exclude governors or other public officials from such requests altogether, though most do not. Public officials increasingly conduct government business with their personal e-mail accounts and cell phones or, conversely, use government accounts for personal communication. That has presented its own dilemma: Should personal electronic communications be exempt because of their private nature? Most states that have addressed the issue of electronic communication retention have determined that job-related communications must be saved. How long they should be kept, however, is an unsettled matter. There is ongoing or recently settled litigation on this issue in several states, including Missouri and North Carolina.