Officials put up roadblocks to e-mail message access

From the Spring 2002 issue of The News Media & The Law, page 10.

When the Rocky Mountain News, a newspaper based in Denver, requested the e-mail messages of Jefferson County Sheriff John Stone to find out how he responded to the shootings at Columbine High School, they didn’t get the records.

Instead, county officials sent back a $1 million price tag to the newspaper in March, a fee that would not necessarily guarantee the records would even be released.

Officials defended the fee, saying it would merely recoup the cost of determining whether the e-mail messages were covered by the state’s open records law. Apparently, they claimed, most of the hefty price tag was the cost of getting past an electronic security system that prevents hackers.

On the flip side, in 1996, Roy Romer, then Colorado governor, voluntarily gave up two weeks of his e-mail messages to a student, who had requested them under the state open records act, with no great difficulty or expense.

While other states may not have gone to either of the extremes exhibited in Colorado, some have tried to avoid the release of e-mail messages, found other ways to either circumvent the open records laws or otherwise avoid having to release the messages, and a few have clearly made such messages public records.

In Utah, the Government Records Access and Management Act defines all electronic data, regardless of form or characteristics, as a record. But the governor refused to release his e-mail, claiming that they were private and not a matter of public record.

Gov. Mike Leavitt even told news organizations that under advice from his attorney, he systematically purged his personal e-mail from his computer system. Four news organizations, including the Salt Lake City Tribune, sued the governor in March, arguing that, for purposes of the open records statutes, there was little difference between electronic and paper records.

The problem with electronic records is that “a lot of FOI laws only require a custodian to release the records if they exist,” said Forrest “Frosty” Landon, executive director of the Virginia Coalition for Open Government. “Well, if the e-mail person deletes his e-mail, it doesn’t exist and so the custodian is no longer required to make those records available.”

In 1993, the federal government set the pace in allowing e-mail to be as accessible as any other record, after a federal court case established that electronic communications systems contained preservable records and made official business transmitted electronically accessible to the public.

In that case, the National Security Archive and other researchers and nonprofit organizations challenged the proposed destruction of federal records on the last day of Ronald Reagan’s presidency. At the same time, the groups made Freedom of Information Act requests for all material stored on the electronic communications systems of the National Security Council and the Executive Office of the President, including Reagan’s e-mail. A federal district court in 1993 held that “substantive electronic communications satisfy . . . the definition of a record.” (Armstrong v. Executive Office of the President)

Although a few states, such as Arizona, Arkansas, Utah, Virginia and Wisconsin, passed laws requiring e-mail to be treated like any other written public record, most states were slow to follow suit. Some state legislatures have not even addressed the issue.

Basically, unless the content of a written communication falls under an exemption, it should be released, regardless of whether it’s a paper or electronic record, Landon said.

But many state agencies have been slow to abide by their state’s open records laws despite the general trend in most federal agencies to release e-mail. In practice, state agencies refuse to release them, sometimes by charging exorbitant rates as Jefferson County officials did, by slipping through another loophole in the law exempting e-mail regarding personal business, or, as the Indiana Legislature attempted to do, by carving out an additional exemption.

Late last year, Indiana legislators attempted to exempt themselves from their own open records laws through legislation. Some of the lawmakers were worried that mail from constituents or personal e-mail would be accessible to reporters. The governor vetoed the legislation. Legislators threatened to override the veto but backed away from it. Surveys taken by media groups showed that the bill was unpopular with the public.

“Legislatures want to establish different rules for everyone else than themselves,” Landon said.

Had the governor signed the legislation, it “would’ve been a significant step backwards,” he said. “We’ve got to be careful that we don’t lose the historical records that everybody else needs or the contemporary records we need to hold government accountable.”

In many ways, knowing that e-mail may potentially be treated as a public record has changed the way state officials and state agencies handle their e-mail practices.

In Iowa, council members in Iowa City were warned to only send city-related business through e-mail since they were accessible by the public as a matter of public record.

In Nebraska, the governor’s e-mail is apparently kept for four years. Although the messages are deleted after one year, they are saved onto backup tapes. However, not all state agencies keep to that guideline. When a judge in 1999 ordered the state to release e-mail regarding a contentious fight against the placement of a nuclear waste dump within Nebraska’s borders, he found the messages had been deleted and the backup tapes taped over.

“Many state agencies don’t remember record retention rules,” Landon said. “E-mails are very easy to put into a trash can and then they empty out the trash can, and then we wouldn’t have a public record anymore. States have to do a lot of educating.” —MM