AP Photos by Mike Groll, Kevin Wolf
If the back and forth between public records requesters and government officials can be likened to a game, a series of recent cases involving disputes over whether particular records are public highlights what transparency advocates says is a constant problem: the rules are always changing.
With public officials increasingly using smartphones to communicate, questions often arise over whether officials’ use of private email accounts to conduct government business should be subject to open records laws, a question two cases in New Mexico and Texas raise.
Although the cases show that questions about access to private email persist, the rules of the game have been largely settled by a developed body of law. The same cannot be said for other areas of records access law, with a spate of cases showing that officials are trying various ways to either not create records or to thwart access to them in a move that transparency advocates say frustrates the purposes of open government.
For example, New York Gov. Andrew Cuomo uses BlackBerry messages to communicate with his inner circle so as not to create any permanent record of the exchanges, according to news reports. At the federal level, it was revealed that the former head of the Environmental Protection Agency uses a secondary email account to communicate with staffers, raising questions about whether the account is subject to FOIA.
And in Kentucky, officials unsuccessfully tried to prohibit a newspaper from accessing an investigation into a local jail by refusing to take possession of the report, believing that by not physically possessing the document, it would not be subject to the state’s public records law.
The various maneuvers by public officials raises questions as to whether officials are committed to transparency, said Jon Fleischaker, a Kentucky-based media lawyer who represented the The Glasgow (Ken.) Times when it sought access to the jail investigation.
“When officials bend over backwards and turn themselves into pretzels to try to avoid the public records law, it’s as if they’re saying that it’s none of your business,” he said.
FOIA dispute over EPA email messages
Author Chris Horner first discovered that Environmental Protection Agency officials were using secondary email accounts while researching a book about the Obama administration’s transparency record.
In digging through documents produced in response to one of his federal Freedom of Information Act requests, Horner spotted a memo from EPA officials to the Archivist of the United States that a practice in place since the 1990s wherein the agency has provided EPA administrators with secondary, internal email accounts. Horner then sent off a series of FOIA requests seeking the names of secondary email accounts and any email messages within them of former EPA Administrator Lisa Jackson, who left the position in mid-February.
After the EPA did not respond to Horner’s request, he sued the EPA in September for access to the records. As the litigation was unfolding, the EPA’s Office of Inspector General announced it would investigate whether officials were using the secondary accounts to shield certain communications from disclosure under FOIA.
EPA spokeswoman Alisha Johnson, however, said in a statement to the Reporters Committee for Freedom of the Press that both the public and internal email addresses are searched in response to FOIA requests and that the creation and use of the secondary email address is designed to help EPA administrators manage electronic correspondence.
“Given the large volume of emails sent to the public account — more than 1.5 million in fiscal year 2012, for instance — the internal email account is necessary for effective management and communication between the Administrator and agency colleagues,” Johnson wrote.
The EPA’s response to Horner’s request has also drawn scrutiny from members of Congress, who have questioned the extent of the use of secondary email addresses and whether the practice inhibits congressional oversight and the transparency aims of FOIA.
And in early February Sen. David Vitter (R-La.) and Reps. Darrell Issa (R-Calif.) and Lamar Smith (R-Texas) sent the EPA’s Inspector General a letter asking that the office expand its investigation to determine whether, in response to Horner’s request, the agency is misusing FOIA’s privacy exemption to redact the email address, account name, domain address and server used by the secondary account.
The letter argues that because the account is used for government business and the EPA has already stated that such a secondary account exists, the privacy exemption is inapplicable.
“As such, the Administrator has no personal privacy interest in her alias email account,” the congressmen wrote. “Moreover, it is beyond question that she does not have a personal privacy interest in the server she used for her work correspondence.”
Horner said he is not rushing to judgment on whether Jackson used a secondary email account to avoid FOIA’s disclosure requirements, as he understands the agency’s rationale for needing an internal account to conduct business.
But Horner said the practice does raise concerns for individuals using FOIA to obtain officials’ correspondence because it requires requestors to know that an individual might have a secondary email account rather than the one that is publicly known. It also raises concerns regarding whether FOIA processors handling the requests are aware that they should be searching additional email accounts when a request seeks the EPA administrator’s correspondence.
“These tactics, whether or not they’re designed to frustrate transparency, clearly have the impact of frustrating transparency,” he said.
Use of BlackBerry leaves no permanent record
The New York Daily News reported over the summer that Cuomo does not communicate with his staff by email, preferring to talk in person, over the phone or by use of the Blackberry Pin-to-Pin messaging system that leaves no electronic trail.
The newspaper learned of Cuomo’s behavior after Kenneth Lovett, the paper’s Albany bureau chief, filed a public records request for all email sent and received by Cuomo since the beginning of 2012. The state responded that they could find no records of any email sent or received by the governor.
As Lovett reported, although email messages can be recovered from a data server, Blackberry Pin-to-Pin messages cannot be recovered once they are deleted from a mobile phone because the messages are transmitted directly to the phone rather than going through a server.
And although New York’s Freedom of Information Law may deem some internal communication between the governor and his aides private, meaning that they may not be disclosed under the state’s public records law anyway, the lack of backup copies of correspondence could make it harder for investigators to document misconduct, Lovett said.
“If there is an investigation into the governor or his administration, there’s not a paper trail to go after,” he said.
Lovett said his story was meant to illustrate how Cuomo runs his administration and the potential problems that could come up if there is any question about the governor’s administration.
“In no way was it meant to imply that there is anything untoward going on in Cuomo’s administration,” Lovett said. “But you never know what can come up and this just makes it that much harder to follow a trail.”
Kentucky officials try to withhold record
Instead of trying to withhold records detailing an investigations into a local jail facility, Kentucky officials tried to avoid the issue entirely by arguing — ultimately unsuccessfully — that the record was not in their possession and therefore could not be disclosed.
The fight for the records began in May 2012 when members of the Barren County Fiscal Court, the equivalent of a board of supervisors, contracted with an outside investigator to follow up on allegations of misconduct at the Barren County Detention Center.
After the investigation was completed, the contractor presented a summary of his findings to the board. The board, however, voted to not take possession of the full report and to instead pass it along to the FBI. According to court filings, the independent investigator did not want to turn the report over and make it subject to the public records law because it would expose the individuals who cooperated with him during the investigation.
When the Glasgow Daily Times filed a public records request for the report, officials on the fiscal court said that because it did not possess or control the documents, it could not be considered a public record.
Essentially, officials were arguing for a very narrow and technical definition of the law as a way to avoid disclosing the records, Fleischaker said.
“This is just the latest effort by public agencies to try avoid open records responsibilities by either saying they don’t have it by letting somebody else keep it,” he said.
The council’s position was in many ways similar to the position taken by the NCAA in 2009, when it unsuccessfully argued that documents related to a student-athlete cheating scandal at Florida State University were not subject to the state’s public records law because the NCAA stored the records on a secure website. The NCAA argued that because university officials could only view the records and could not save or print them, they were not state records.
But a Florida court ruled that the records, which included documents related to cheating allegations against more than 60 student athletes, were subject to the state’s public records law, reasoning that because the university was public, the documents created about the university were subject to the state’s public records law.
In the Kentucky case, the paper was similarly able to argue successfully to a trial court that, although the record was not in the physical possession of the public body, it was a public record. The court ordered the release of the records in early February.
Fleischaker credited the trial court for embracing the purpose of Kentucky’s open records law, which is to increase public access to government, rather than getting bogged down in fine legal technicalities.
“Kentucky courts historically have always taken the position that they are there to fairly and adequately apply not just the letter of the law but the spirit of the law,” he said.
Private email as public record issue continues
Although many state courts and legislatures have already wrestled with determining when a public official’s use of a private email account to conduct government business becomes a public record, the question remains unaddressed by the highest courts in New Mexico and Texas.
In New Mexico, the Santa Fe Reporter brought the issue to the forefront when it requested email from the private accounts of Gov. Susana Martinez and two of her aides after it became public that her office was using private email accounts to conduct public business.
Although Martinez has since issued an order requiring all state employees to use public email to conduct public business, the office has only released one email message. According to the Santa Fe Reporter, other messages exist, as it has obtained leaked email messages that were not included in the release.
The paper filed a complaint with the state’s Attorney General’s Office, which in February wrote a letter to the governor asking her to release the requested records or provide a valid reason for withholding them, according to the newspaper’s published reports.
“If email is used to conduct public business, the email is a public record, without regard to whether the email is created or maintained on a public or private email account,” the letter stated. As of press time, the governor’s office had not responded to the letter.
And in Texas, a local elected official has vowed to fight all the way to the state’s Supreme Court before he releases email messages from his personal account in response to a public records request by the San Antonio Express-News.
The dispute began when the Express-News sought email messages between Bexar County Commissioner Tommy Adkisson and a toll-road critic from both Adkisson’s government and personal accounts. The paper sought the email messages from Adkisson, who also heads the region’s planning organization, to learn more about his relationship with the critic.
A trial court ruled in April that the records must be disclosed, finding that the email messages were subject to the state’s public records law. Adkisson appealed, arguing that private email is not included within the definition of what constitutes “public information” under the state’s public records act.
“Emails within private accounts of public servants are not assembled, collected, or maintained by a governmental body because individual public servants are not governmental bodies as defined by the Act and therefore the information they possess is not subject to compelled public disclosure by the Act,” Adkisson’s appellate brief states.
Ravi Sitwala, an in-house attorney for Hearst Newspapers, which owns the Express-News, said that there is little doubt that email messages qualify as public records.
The Texas Public Information Act contains two definitions of what constitutes “public information.” Under the first definition, a record is public information if it is created by a government body. Under the second definition, a record qualifies if it is created for a government body and the body owns the information or has a right to access it.
Adkisson’s email messages concerning government business would therefore be subject to disclosure under either definition of the statute, Sitwala said. First, because the email was created by a government official, it was created by a government body and therefore must be disclosed. Second, local ordinances applicable to Adkisson’s work as an official state that the government owns information created by workers, which means that email messages conducting official business would qualify as records created for a government body that both owns it and has the right to access it.
Additionally, Sitwala said that the broader policy of Texas Public Information Act also counts in favor of disclosing the records, as the law was designed to prevent officials from picking and choosing what records can be made public. The text of the statute states that the public does not “give their public servants the right to decide what is good for the people to know and what is not good for them to know.”
As a result, Sitwala said he hopes the court will reject Adkisson’s narrow interpretation of the statute.
“If the email is transacting government business, it shouldn’t matter what email address is being used because that just opens the door to rampant abuse,” he said.