Courts say government e-mail can be ‘private’

From the Winter 2010 issue of The News Media & The Law, page 15.

A judge e-mails a coal executive who has cases pending before the court. A government attorney sends his personal lawyer an e-mail from his Justice Department account. Members of a school board e-mail back and forth with public school teachers and representatives of an education association.

In all three situations those involved said the e-mail messages were “personal” and therefore not subject to freedom-of-information laws. In all three cases, courts ultimately agreed.

Whether government employees can expect some degree of privacy when sending e-mail messages of a personal nature from work accounts is a question increasingly decided by courts — the outcome often hinges on whether state law defines a public record by its content or by where it is created and stored.

The public records statute here in California is defined in such a way as to focus on the substance of what is said,” said Peter Scheer of the First Amendment Coalition. “It’s not enough that communication occurs on a government used phone computer or device — it also has to be a communication about government business.”

The West Virginia Supreme Court interpreted its state statute similarly in November when it decided in The Associated Press v. Canterbury that personal e-mail messages between a judge and a party to a pending case are not considered public records even if sent from a judicial e-mail account.

In that case, the court overturned a lower court’s decision that five e-mail messages between former state Supreme Court Chief Justice Elliott “Spike” Maynard and Massey Energy CEO Don Blankenship should be released to The Associated Press, which had filed a public records lawsuit when its initial request for 13 withheld e-mail messages was denied.

Though Massey Energy had matters pending before the court at the time of the exchange, the justices concluded that the e-mail in question was not related to Maynard’s official duties. The opinion cited state law, which defined public records as “includ[ing] any writing containing information relating to the conduct of the public’s business, prepared, owned and retained by a public body.”

Though Maynard later stepped down when his relationship with Massey came to light, the court said that though the relationship was certainly of public interest it was not related to public business and therefore the e-mail messages were not public records.

“If FOIA’s definition of a public record is to include an examination of the record’s context by virtue of the public’s interest in the record, the Legislature must add such language to that definition,” current Chief Justice Robin J. Davis wrote.

Franklin Crabtree, executive director of the American Civil Liberties Union of West Virginia, which joined a friend-of-the-court brief filed by The Reporters Committee for Freedom of the Press, says the decision set a disturbing precedent. “The communication in this dispute was the result of e-mails on a public account, from a public agency, on public time to a litigant coming before the body [Maynard] served … that factual scenario should have a very difficult time being exempted from any FOI act,” he said.

Thus far Crabtree said there has been no immediate move to amend the law in the legislature.

Immediately following that decision, a federal court in the District of Columbia and a Michigan appeals court both furthered the idea that personal e-mail can be sent from government accounts with some expectation of privacy.

In the first case, Convertino v. U.S. Department of Justice, former Justice Department attorney Richard Convertino sought access to Assistant U.S. Attorney Jonathan Tukel’s e-mail messages to determine the source of a Justice Department leak regarding Convertino’s conduct during a terrorism trial. Chief Judge Royce Lamberth found that Justice Deparment policy permitted Tukel to send personal e-mail and that there was a reasonable expectation under federal law that messages to his personal attorney would be private.

In Howell Education Association v. Howell Board of Education, a Michigan appeals court reached a similar conclusion in a lawsuit over whether e-mail between public school teachers, education association representatives and school board members were public records subject to FOIA. A three-judge appeals court panel concluded that e-mail must be housed on a government server and relevant to “the performance of an official function” to qualify as public records. Furthermore, the judges found that a “mere violation of an acceptable use policy barring personal use of the email system — at least one that does not expressly provide that emails are subject to FOIA — does not render personal emails public records subject to FOIA.”

In states that use a content-based approach to separating personal and public work e-mail, the next question becomes deciding who has the authority to categorize specific records.

“The hard part is how you implement the rule you have,” Scheer said. “Somebody has to look at the private ones to determine they’re not subject to disclosure … But who finds them? And if they had to be found by anyone other than the person who has them, how do you square that with the nonpublic nature and presumed private nature of those records?”

At the outset of a records request, some agencies ask the owner of the records to sort the messages in question. If a requester contests e-mail withheld from the request, a court can step in and review them — in the initial stages of The Associated Press v. Canterbury, for example, a judge reviewed 13 withheld e-mail messages and made the determination to release five. Some news organizations have found ways to mediate disputed electronic records without appealing to a court.

In November, the Times Daily requested all e-mail exchanged between the mayor, city council members and city attorney of Florence, Ala., during the acquisition of a golf course. Though the city handed over 1,400 pages of messages, it withheld some that were deemed personal. Alabama Press Association General Counsel Dennis Bailey sent a letter to the city on behalf of the newspaper and a compromise was reached.

“I entered into an agreement with the city attorney that if they would provide me with all of the e-mail they disputed, I would agree not to release them to my client unless they agreed to allow me to do that or got a court order to do that,” Bailey said.

Bailey identified a handful of messages during his review he believed were improperly withheld and the city attorney agreed they could be released. Though several other e-mail messages are still the subject of dispute, Bailey said in most cases he has been able to work out a resolution that works for the news organizations he represents.

“That’s a very smart way to go about it,” Scheer said. While the issue of public access to e-mail will continue to develop, the U.S. Supreme Court has decided to hear an appeal on a similar issue. City of Ontario v. Quon, which is scheduled for argument on April 19, will examine whether public employees have a reasonable expectation of privacy in text messages. But what effect that decision will have on public access waits to be seen.