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6. Email

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  • Alabama

    The Supreme Court of Alabama has treated email as public records subject to the Public Records Law. See Tenn. Valley Printing Co. v. Health Care Auth. of Lauderdale County, 2010 ALA. LEXIS 213 (Ala. Oct. 29, 2010) (holding that emails between public employees regarding the sale of public assets was subject to disclosure under the Public Records Law).

    However, the attorney general has opined that internal and external email regarding possible state department actions are not subject to disclosure.  Op. Att’y Gen. Ala. 36 (June 20, 2017).

    Request for emails must be made to the proper custodian of public records, and computer service employees may not be the proper person to provide emails if they are not the custodian of the public records requested. George v. Gassock, CV 07-40 (Cir. Ct. of Morgan County, Ala. June 12, 2007).

    The Supreme Court of Alabama has treated emails between public employees regarding the sale of public assets as subject to the Public Records Law. Tennessee Valley Printing Co. v. Health Care Auth. of Lauderdale Cty., 61 So. 3d 1027 (Ala. 2010).

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  • Georgia

    Email is not exempt from the Act’s disclosure requirements. However, the Act does expressly provide that “[r]equests to inspect or copy electronic messages, whether in the form of e-mail, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought, including, if known, the name, title, or office of the specific person or persons whose electronic messages are sought and, to the extent possible, the specific data bases to be searched for such messages.” O.C.G.A. § 50-18-71(g).

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  • Kansas

    In 2015, Attorney General Derrick Schmidt found that “[s]tate employees who utilize a private device and do not utilize public resources to send an email from his or her private email account (private email) are not a ‘public agency’ as defined by the Kansas Open Records Act (KORA) in K.S.A. 2014 Supp. 45-217(f). Accordingly, their private emails are not records subject to the provisions of the KORA.”  Kan. Att’y Gen. Op. 2015-10.  But in the following legislative session, Attorney General Schmidt led an effort to amend the definition of “public record” so that email correspondence pertaining to official duties would be subject to KORA.  That definition is currently found in K.S.A. 45-217(g)(1)(B).  The amendment was intended to apply KORA “to otherwise public records on the private email accounts of state employees.”  Testimony in Support of Senate Bill 361 Presented to the Senate Judiciary Committee By Kansas Attorney General Derek Schmidt (Feb. 2, 2016).

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  • Massachusetts

    Electronic mail is a public record subject to the requirements of the Public Records Law. Government agencies have a duty to “effectively manage and control” e-mail as part of the office's record-holding. SPR Bulletin 1-99, “Electronic Mail” (revised and reissued, May 21, 2003). This duty includes establishing a written policy for storing e-mail and retaining e-mails for the prescribed period of time based on content. E-mail should be printed and stored in paper form, but certain types of e-mail may be stored electronically.

    A common issue with e-mail records relates to deletion of e-mail. Even if a custodian claims that an e-mail message was deleted, backup copies are often retained, and these records remain subject to discovery regardless of the intent to delete the message. E-mail is considered analogous to paper documents. The Supervisor of Public Records, however, has noted that there are differences between the two. Namely, the contextual data that accompanies an e-mail (the mailing address, date/time stamp, routing instructions, transmission and receipt information) is considered an integral part of the record and must be retained in any printed or stored version. SPR Bulletin 1-99 (2003).

    Email constitutes a record.  The Public Records Law “applies to all government records generated, received or maintained electronically, including computer records, electronic mail, video and audiotapes.” Guide to Mass. Pub. Recs. Law (Sec’y of State, rev. March 2009), at 4.; see also SPR Bulletin 1-99 (revised and reissued, May 21, 2003) at ¶ 3.  The envelope information (mailing address, date and time stamp, routing instructions, and transmission and receipt information) “constitutes an integral part of the record,” and presumably must be disclosed under the Public Records Law along with the contents of the email. See SPR Bulletin 1-99, at ¶ 5.

    “Email systems in use in government offices are government property installed and maintained for the conduct of government business”; agencies “may and should” exercise control over it and have the right to monitor and read employee email.  SPR Bulletin 1-99, at ¶ 7.

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  • New Mexico

    Electronic mail is available under the broad definition of public record contained in NMSA 1978 Section 14-2-6(G) (2013), which includes “all documents… recordings and other materials, regardless of their physical form.” See generally American Civil Liberties Union of N.M. v. Duran, 2016-NMCA-063 (”Email correspondence by state employees constitute a public record as defined in the statute.”); Brenner v. Bd. of Cty. Comm’rs, No. 18-478 KG/KBM, 2019 WL 1060812 (D.N.M. 2019).

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  • Pennsylvania

    Under 65 Pa. Stat. Ann. § 67.102, “record” is defined as “information stored or maintained electronically.”

    “Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record . . . and to respond as promptly as possible under the circumstances existing at the time of the request.” 65 Pa. Stat. Ann. § 67.901; In re Silberstein, 11 A.3d 629, 633 (Pa. Commw. Ct. 2011) (the open records officer is required to direct relevant requests to appropriate public officials and determine whether that official is in possession, custody or control of a “public record”).

    So long as an e-mail satisfies the Law’s requirements, the Law requires access.  See, e.g., In re Silberstein, 11 A.3d 629. Silberstein suggests that a public official who “possesses, controls or has custody” of a public record, no matter where it exists, must disclose that information to a requester.  Id.  However, emails located on an agency-owned computer are not presumptively records of the agency simply by virtue of their location.” Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259, 1264 (Pa. Cmmw. 2012).  Rather, it is those emails that document the agency's transactions or activities that are “records.” Id.  Therefore, personal emails sent or received using a school district e-mail address or by virtue of their location on a district-owned computer – even though the district had a policy limiting use of computers to official business and stating users had no expectation of privacy – may be exempt from disclosure. See Baxter, 35 A.3d 1259; see also In re Silberstein, 11 A.3d 629 (a public official’s electronic communications do not fall within the definition of a “record” under Pennsylvania’s Right to Know Law when the official has no authority to act on behalf of a governmental agency without its authorization).

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  • Texas

    Email is subject to the same "public information" and exception analysis that all material requested under the Public Information Act must go through to determine whether it is subject to disclosure. See Op. Tex. Att'y Gen. No. GA-4274 (2003); Op. Tex. Att’y Gen. OR 2017-07695 (2017). If collected, assembled, or maintained in connection with the transaction of official business, the records will be subject to disclosure. See Op. Tex. Att'y Gen. No. GA-4274 (2003).

    In the letter ruling, the Attorney General reasoned that Section 552.021 provides for public access to "public information." See id. Section 552.002 defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." § 552.002(a). Thus, information that is collected, assembled, or maintained by a third party may be subject to disclosure under chapter 552 if a governmental body owns or has a right of access to the information. See Tex. Att'y Gen. ORD-462 (1987); see also Tex. Att'y Gen. ORD-499 (1988) (stating that generally records held by a private attorney related to legal services performed by the attorney at the request of a municipality are subject to the Open Records Act and disclosure depends on whether the records fall within any of the Act's specific exceptions). Information is generally "public information" within the Act when it relates to the official business of a governmental body or is used by a public official or employee in the performance of official duties even though it may be in the possession of one person. See Tex. Att'y Gen. ORD-635 (1995). Although not an exhaustive list, the Attorney General stated that the following factors were relevant in determining whether documents are essentially personal in nature or whether they contain information that is collected, assembled, or maintained by or for a governmental body: who prepared the document; the nature of its contents; its purpose or use; who possessed it; who had access to it; whether the employer required its preparation; and whether its existence was necessary to or in furtherance of the employer's business. Op. Tex. Att'y Gen. No. JC-3828 (2001) (citing In re Grand Jury Proceedings, 55 F.3d 1012, 1014 (5th Cir. 1995)).

    Under Section 552.137(a)-(b), an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure unless the member of the public affirmatively consents to its release.

    The exemption under Section 552.137(c) does not apply to an e-mail address (1) provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor's agent; (2) provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor's agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract; or (4) provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public.

    Under Section 552.137(d), a governmental body is not prevented from disclosing an e-mail address for any reason to another governmental body or to a federal agency.

    E-mail sent from a personal e-mail account utilizing a government computer may also be subject to public disclosure. See Op. Tex. Att'y Gen. No. GA-4274 (2003). To be subject to the Act the information must be “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business” by or for the district. Tex. Gov’t Code § 552.021. See Tex. Att’y Gen. Op. ORD-4120 (2011). In Tex. Att’y Gen. ORD-3624 (2011) it was found that e-mail inadvertently forwarded from a personal computer to the city's computer system was not covered by the Act because they were not created or sent “in the performance of [the employees'] official job duties.” See also Tex. Att’y Gen. ORD-635 (1995) (e-mail not subject to public disclosure where they constituted personal information unrelated to official business and were created or maintained by a state employee involving de minimis use of state resources).

    E-mails about public matters sent from private accounts or home computers may be subject to disclosure.  Tex. Att’y Gen. ORD-1790 (2001) (council member solicited citizens to communicate with her as a council member on her personal computer by including her home e-mail address on her business card); see also Tex. Gov’t Code § 552.004(b).

    Information created for campaign and personal political purposes in a public officeholder’s personal e-mail account that is not in the city’s possession is not “public information” subject to the Act. Tex. Att’y Gen. ORD-1126 (2005).

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  • Wisconsin

    The Supreme Court ruled 5-2 that “purely personal e-mail” sent or received by public employees on government computers is not subject to disclosure under the Open Records law. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177. E-mail “must have a connection to a government function” to be subject to disclosure. Id., ¶ 23. Personal e‑mail that is “used as evidence in a disciplinary investigation or to investigate the misuse of government resources” is presumed public, as is e-mail that relates to government duties. Id., ¶ 141.

    The lead opinion in Schill, joined by three justices, would hold that purely personal e-mail is not within the definition of “record” under Wis. Stat. § 19.32(2). Id., ¶ 23. Two concurring justices, id., ¶¶ 153, 173, and two dissenting justices, ¶ 211, concluded the definition of “record” includes purely personal e-mail. Requesters are entitled to emails in electronic form. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W. 2d 898.

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