State public records laws and e-mail

From the Winter 2008 issue of The News Media & The Law, page 18.

In recent issues, The News Media & the Law has written stories on the topic of e-mailed communications between public officials and the accessibility of those communications as required by public records laws. Since the last article on the subject in our Summer 2007 issue, some noteworthy developments have transpired in various jurisdictions nationwide:

Michigan:

Public access to government e-mail is an issue at the heart of the mayoral sex scandal that has recently rocked Detroit. Text messages produced by Mayor Kwame Kilpatrick and his former chief of staff Christine Beatty were obtained by The Detroit Free Press and appear to show that the two were indeed having an affair — contrary Kilpatrick’s sworn testimony.

The newspaper hasn’t yet said exactly how it obtained the text messages, which were produced on government-owned equipment using a privately run service that was contracted by the city of the Detroit, according to a Free Press report.

The Free Press is currently in court citing public records law as a basis to force the release of all of the text messages, which were also apparently the basis for an $8.4 million settlement paid out by the city to plaintiff police officers who had accused the city of firing them because they had information that would confirm the mayor’s alleged affair.

Missouri:

Gov. Matt Blunt raised the ire of open government advocates when it was disclosed that his office was routinely deleting its e-mails in violation of the state’s open records law.

That report led to other developments, including a lawsuit by Blunt’s staff attorney who claims he was fired in retaliation for his criticism of Blunt’s e-mail deletion policy and also Blunt’s recent announcement that he is initiating a new archive system for state government e-mails that will cost $2 million to fund in its first year and an additional $486,652 to maintain a year thereafter.

In late January, Blunt, a 37-year-old Republican and son of U.S. Rep. Roy Blunt (R-Mo.), announced that he will not seek re-election when his first term expires at the end of this year.

Ohio:

A state legislative committee issued recommendations in October directing state and local officials to refrain from using private e-mail accounts to discuss public business.

The recommendation followed a Columbus Dispatch investigation that found widely inconsistent e-mail use policies amongst state agencies and legislative staff members, who were found to be frequently using private e-mail accounts for public purposes.

The committee recommendation is in line with a relatively new policy put out by the Ohio attorney general’s office that requires its employees to copy and retain e-mail messages related to public business.

Texas:

In January, the Texas Court of Appeals affirmed a state district court judge’s decision that the city of Dallas must disclose to The Dallas Morning News e-mail messages created by city officials discussing city business even though the e-mails were produced on the officials’ personal e-mail accounts.

The officials whose e-mails were at issue included former Dallas Mayor Laura Miller, City Manager Mary Suhm and Housing Director Jerry Killingsworth.

Dallas Morning News reporters sought the e-mails to shed light on a city tax deal with a corporation and an FBI investigation that had been looking into possible corruption involving city officials, according to the paper.