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Judge must decide whether e-mail is private

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NEWS MEDIA UPDATE   ·   ARIZONA   ·   Freedom of Information   ·   April 27, 2007

NEWS MEDIA UPDATE   ·   ARIZONA   ·   Freedom of Information   ·   April 27, 2007

Judge must decide whether e-mail is private

  • A government official’s characterization of e-mail messages from a government account as “personal” is not enough to block release, state Supreme Court rules.

April 27, 2007  ·   Government officials do not have the final word on which documents maintained on official computers constitute public records, the Arizona Supreme Court ruled Wednesday.

Saying a judge must have an opportunity to review the content of e-mail messages alleged to be private, the Supreme Court sent a case involving a fired county manager back to a trial court for further proceedings.

The ruling “leaves no doubt that a public official cannot simply pronounce the e-mail communications on a government computer system as purely personal without the public having an opportunity to challenge that pronouncement,” said David Bodney, attorney for The Arizona Republic.

The dispute over these records began in late 2005, when the Republic began covering the ordeal of Stanley Griffis, who was suspended as manager of Pinal County after he improperly purchased sniper rifles and ammunition with public funds. As part of its reporting, the Republic made a public records request for Griffis’ official e-mail records for the time period covering his misconduct and the investigation into it.

The county agreed to make the documents public, but Griffis sued to block the release, arguing that the e-mail was private correspondence and by definition not a public record.

The trial court sided with the Republic, saying the records were public and ordered them turned over. Griffis appealed and the state intermediary court sided with him, ruling that the burden was on the newspaper to establish that e-mail messages a government official deems private are, in fact, public records, and that the Republic had failed to meet that requirement.

On Wednesday, the Supreme Court rejected Griffis’ formulation, emphasizing that the burden was on the government official to justify how a document created by and maintained on a government computer is private.

Important to the Supreme Court was that no judge in any of the lower proceedings actually reviewed the content of the disputed e-mail messages.

The court said when a public official proclaims documents stored on a government computer system to be private, requesters must be able to ask a judge to look at the disputed records in chambers to determine whether that claim of privacy is valid. Otherwise, the court said, those public officials could too easily circumvent the strong presumption of openness in Arizona’s public records law.

Judicial “review of disputed documents also reinforces . . . that the courts, rather than government officials, are the final arbiter of what qualifies as a public record,” the court wrote.

The Reporters Committee for Freedom of the Press, along with a coalition of media groups, filed a friend-of-the-court brief with the high court supporting the Republic.

Early this year, Griffis admitted stealing about half a million dollars in public money and pleaded guilty to six felonies, including theft and fraud. He will be sentenced on those charges May 10.

(Griffis v. Pinal Co., Media Counsel: David Bodney, Steptoe & Johnson LLP, Phoenix)NW

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