6. How is email treated?
The public records law does not specifically identify or address "e-mail" as such, but the definition of records under the act is broad, and emails are clearly encompassed by the PRA, at least so long as they involve official business. The Public Records Act defines the term “public records” in part to mean “books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics,” AS 40.25.220(3). While there may be issues about whether e-mails concern public or private matters, or are privileged, or about the logistics of producing them, there is no real question whether e-mails are public records. The Alaska Supreme Court has recognized the right of access to emails as public records, and affirmed that there is no room for arguing that the right of access to public records differs depending on whether the record exists in paper or electronic form. McLeod v. Parnell, 286 P.3d 509, 515 (Alaska 2012). In that case, the Court rejected the plaintiff records requester’s argument that it was a per se violation of the Public Records Act for a public employee to use a private email account to conduct public business. However, the Court also rejected the State’s position that the mere failure of a public employee to preserve a given record established that it was not a public record. The Alaska Supreme Court interpreted the PRA’s definition of “public record” to include state agency records preserved or appropriate for preservation under the state’s Records Management Act (AS 41.21.010-.150). The McLeod case arose from requests for emails of then-Governor Sarah Palin relating to state business sent or received using private e-mail accounts. The Court recognized that “not every record a state employee creates, and certainly not every state employee email, is necessarily appropriate for preservation under the Records Management Act.” Id. at 515. But the Court agreed that the plaintiff requester’s interpretation was “necessary to avoid an inconsistency within the Records Management Act’s definition of ‘records,” under which a document appropriate for preservation could be a record—thereby requiring its preservation—but not a ‘public record’ under the Public Records Act. The plaintiff had argued that adopting a literal interpretation of the PRA definition that defined a “public records” as records that “are preserved” would lead to “an absurd result because ‘it grants “elected and appointed official” authority to … simply, and quite privately, decide not to “preserve” a record that, for whatever reason—including avoiding political embarrassment or because the record is evidence of mis or malfeasance—they do not want the public to see.” Id. at 514. The Supreme Court cited with obvious approval the superior court’s conclusions that “if a state employee deliberately does not preserve a document that is ‘appropriate for preservation’ … that employee is breaking the law,” and noted the plaintiff had established that “the duty to preserve emails exists as to both official accounts and private accounts, and that duty cannot be extinguished by a public official’s unreviewable decision simply not to preserve them.” Id.at 516.
In the context of interpreting the state’s ethics laws, the AG advised that “as a general rule, a public officer may not use state equipment for personal benefit, regardless of whether there is financial gain.” However, the AG’s opinion concludes that personal e-mails and call records are not public records and public disclosure of such personal information would likely run afoul of the individual’s right to privacy under the Alaska Constitution. However, it states, because business related calls and business related email messages would also be generated through these personal devices, it is possible that a state official or a court could be required to review all call records and messages in order to locate the calls and email messages that concern state business and thus are public records. The latter would be subject to review and disclosure, unless the Public Records Act permits them to be withheld for other reasons.
State laws, policies and practices contemplate that there will be some, insignificant use of government equipment for personal business, so that it can reasonably be anticipated there will be private matter on government hardware or found in government e-mail programs. For example, an August 21, 2008, opinion (to Annette Kreitzer, Commissioner, Department of Administration) of the Alaska Attorney General regarding “Personal Use of Electronic Equipment,” AGO File No. 661-08-0388, issued in the context of a request for guidance concerning applicability of state ethics laws, states: “We assume that cell phones and PDAs are issued to state officers to ensure out-of-office accessibility, during the day but particularly after hours and on weekends. PDAs may also be needed when public officers travel and require access to email. …Generally, state equipment is not a substitute for an officer’s personal equipment and personal use should be collateral or incidental to the performance of official duties. Personal calls or contacts during the work day should be of short duration as reasonably necessary to tend to family and individual matters, such as child care, medical appointments or social appointments, or to address matters relating to personal or financial interests, similar to the permitted use of a desk telephone. No use of state equipment may be made for partisan political purposes….” After reviewing applicable ethics laws and particularly focusing on the line between substantial and material conflicts or potential conflicts excused as minor and inconsequential, or having insignificant or conjectural effect, the Attorney General advised state employees, in summary (and declared plans to develop regulations accordingly), that personal use of state-issued cell phones and PDAs will be presumed insignificant if the amount of use does not exceed the greater of 30 minutes per month or five percent of the monthly minute allowance and all extra charges attributable to personal use are reimbursed. Personal use of this equipment is presumed to violate the Ethics Act if the personal use exceeds the allowed usage or the officer fails to reimburse charges incurred for personal use. The AG’s advisory opinion also notes that “portable computers may be provided to employees to facilitate state business when the employees must work out of the office and when on travel. Portable computers may also be provided to members of boards and commissions in connection with official meetings and other state business. These public officers may make reasonable incidental personal use of portable computers, including use for private email or personal entertainment, so long as there is no cost to the state and any use is acceptable under the State of Alaska’s Personal Use of State Office Technologies Policy (SP-017).”
The 2008 Attorney General’s opinion states that from the definition of public records, it appears that personal emails and call records from a personal cell phone or a PDA are not “accounts” or “writings” “developed or received by a public agency,” and are not “preserved for their informational value or as evidence of the organization or operation of the public agency.” Instead, they are writings developed or received by people in their personal, non-employee capacities and preserved for personal reasons. The personal emails and call records thus do not fit the definition of public records. Additionally, the Alaska Constitution provides, in article I, section 22, that the right of the people to privacy is recognized and shall not be infringed.
This provision of the constitution, according to the AG’s opinion, “provides additional protection from public disclosure by the government of personal emails and call records. …[H]owever, a state official or a court could be required to review personal call records and emails while seeking to locate and identify the business related calls or business related emails sent or received through the personally owned devices. Thus, again, although generally personal call records and emails would not be disclosed to the public, they could be reviewed by a state official or court in the limited circumstances described to comply with the Public Records Act.” This content-based distinction between purely personal call records and emails and emails relating to the conduct of public business, and the treatment of personal emails as outlined in the AG’s opinions summarized here, is at least implicitly endorsed by the Supreme Court’s opinion in McLeod. And even before McLeod, this AG’s opinion regarding Personal Use of Electronic Equipment made it clear that when an employee uses personally owned devices for business related calls, the employee has to expect that a state official or a court could be required to review all messages on these personal devices while seeking to locate and identify business related calls or emails. Id. at 13.
Emails on a government computer system that pertain to government business are public records. See Griffis, 215 Ariz. at 5, 156 P.3d at 422. But emails relating solely to personal matters will not have “the requisite substantial nexus with government activities” and therefore are not subject to disclosure. Id.
Arizona courts look at the nature and purpose of the document, not whether it is on a private or public email, to determine whether it is a public record. Id. at 4, 156 P.3d at 421.
Documents that are of a “purely private or personal nature” are not public records. Id.
Because a public record is defined to include “electronic or computer-based information,” Ark. Code Ann. § 25-19-103(5)(A), the FOIA reaches electronic mail. Ark. Op. Att’y Gen. No. 2001-305. This was also the case prior to the 2001 amendment revising the definition to include this information, because the act reached “data compilations in any form.” See Ark. Op. Att’y Gen. Nos. 2000-096, 99-018 (electronically stored e-mail is public record).
As amended by Act 1653 of 2001, the FOIA defines the term “public record” to include “electronic or computer-based information.” Ark. Code Ann. § 25-19-103(5)(A). A court may review e-mails in camera to decide whether they involve a public matter. If the e-mails do concern a public matter, they are considered to be a public record under the FOIA. Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007).
Public matters on government e-mail are considered to be public records and are subject to the FOIA if there is a sufficient nexus between the e-mail messages and the activities of a government entity. Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007).
Not all e-mail on a government computer is considered to be a public record. Although the FOIA carries a presumption that a record is a public record, the facts giving rise to an e-mail message can be examined on a case-by-case basis. The trial court may conduct an in camera review to determine whether an e-mail concerns a matter of purely private concern or there is a substantial nexus between the e-mail and the activities of a government entity. Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). The Attorney General has opined that a personal e-mail created on a work computer during work hours will not be subject to disclosure if it is shown to be personal in nature. Ark. Op. Att’y Gen. No. 2005-095.
An e-mail concerning a public matter that has been sent to the private email address of a government official is subject to disclosure under the FOIA because the statute does not specify that it only applies to messages sent to or received from government e-mail addresses. Bradford v. Director, Employment Security Department, 83 Ark. App. 332, 128 S.W.3d 20 (2003).
If an e-mail message concerns a private matter or is personal in nature, it is not subject to disclosure under the FOIA.
The CPRA's definition of "writing" includes e-mail: "'Writing' means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored." Cal. Gov't Code § 6252(f) (emphasis added).
The California Supreme Court has held that emails sent to or from private email accounts of public employees relating to the public’s business are “public records” within the meaning of the CPRA. See City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 623, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017). In so holding, the court rejected the argument that a public entity does not “retain” public records within the meaning of the CPRA where those records are maintained instead by individual public employees: “A disembodied governmental agency cannot prepare, own, use, or retain any record. Only the human beings who serve in agencies can do these things. When employees are conducting agency business, they are working for the agency and on its behalf.” Id. at 620-21.
However, not every email (or record) retained by a public employee is a public record. Rather, “the writing must relate in some substantive way to the conduct of the public’s business … Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.” Id.
As the court explained, whether an email (or other record) is private or public turns on many factors, “including the content itself; the context in, or purpose for which, it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.” Id. at 618.
Email can constitute a public record. Colo. Rev. Stat. § 24-72-202(1)(c) & -202(1.2). However, to be a public record, an e-mail message must be made, maintained, or kept for use in the performance of public functions or involve the receipt or expenditure of public funds. Denver Publ'g Co. v. Bd. of Cty. Comm'rs of Arapahoe Cty., 121 P.3d 190, 199 (Colo. 2005).
Purely private matters discussed in government e-mail messages are not public records. For example, sexually-explicit e-mails sent between two county employees were private exchanges and not subject to disclosure. Denver Publ'g Co., 121 P.3d at 203. To extent private matters are discussed along with public matters in the same e-mail, the e-mail should be redacted to protect the parties’ privacy prior to disclosure. Id. at 205.
No case law has yet addressed the issue of whether public matters discussed on private e-mails are public records, but under the terms of the open records statute, any record that is “made, maintained, or kept” for use in the exercise of official functions, or involving the expenditure or receipt of public funds is a public record, regardless of its location on public or private property, so long as it is within the lawful possession, custody or control of a records custodian. This was true of the pages of public official's personal diary in which he discussed public business. Wick Commc'ns v. Montrose Cty. Bd. of Cty. Comm'rs, 81 P.3d 360 (Colo. 2003).
"[A]ny communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power" is defined as a "meeting" under FOIA. Conn. Gen. Stat. §1-200(2) (emphasis added).
The Electronic and Voicemail Management and Retention Guide For State and Municipal Government Employees issued by the Office of the Public Records Administrator and State Archives states that e-mail messages sent or received in the conduct of public business are public records.
Yes. Emails are public records subject to the same rules and exemptions as other records. See definition of public record Conn. Gen. Stat. §1-200(5).
The Act does not specifically address e-mail, but e-mails have been requested under a FOIA request. See, e.g., Del. Op. Att'y Gen., No. 11-iib04 (Mar. 29, 2011). "Public records" includes all information "regardless of the physical form or characteristic…." 29 Del. C. § 10002(g). The Legislative Email Exception allows agencies to withhold any email received or sent by members of the General Assembly or its staff, regardless of the content of the email. 29 Del. C. § 10002(l) (16); see Flowers v. Office of the Governor, 167 A.3d 530 (Super. Ct., 2017).
District of Columbia
Although e-mail is not specifically addressed by the statute, it falls within the statutory definition of "public record," which "includes all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials, regardless of physical form or characteristics prepared, owned, used in the possession of, or retained by a public body" and expressly includes "information stored in an electronic format." D.C. Code Ann. § 2-502(18).
Public matters on government e-mails constitute public records under the act. See, e.g., FOP v. District of Columbia, 52 A.3d 822, 825-27 (D.C. 2012) (noting that the police union successfully requested thousands of pages of Metropolitan Police Department emails related to the union under the D.C. Act). The same goes for public matters on a private e-mail account. See, e.g., Vining v. District of Columbia, 2014 D.C. Super. LEXIS 14, at *6 (July 9, 2014) ("[T]he e-mails contained within Ms. Barnes's personal e-mail account were documents "prepared, owned, used, in the possession of, or retained by a public body.").
A party seeking the disclosure of private information on a public e-mail account under the D.C. Act is less likely to be successful. In discussing the disclosure of such information, D.C. courts have noted that the D.C. Act "demands disclosure unless a privacy interest is implicated." District of Columbia v. FOP, 75 A.3d 259, 265 (D.C. 2013) (emphasis added) (holding that the District of Columbia was entitled to redact personal information before complying with a union's request for emails).
E-mail is subject to the Act. The Act requires that “requests 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) (enacted 2012). Cf. Griffin Indus., Inc. v. Georgia Dep't of Agric., 313 Ga. App. 69, 74, 720 S.E.2d 212, 216 (2011) (where request was for e-mail that the custodian no longer maintained on its system but would have to extract from backup tapes using a laborious compilation process, the information sought was not an existing public record, and non-disclosure thereof did not violate the Act).
There is no provision in the Act treating e-mails differently from other public records. The Idaho Supreme Court in Cowles, supra, held that e-mail messages would be considered public records within the meaning of the Act when: (1) the e-mail message contains information relating to the conduct or administration of the public’s business, and (2) was prepared, owned, used or retained by a governmental agency. Id., 144 Idaho at 263.
E-mail is treated as any other public record. Any public matter contained in a government e-mail or in government hardware is subject to inspection and copying under the FOIA. See 5 ILCS 140/2; 5 ILCS 140/1; 5 ILCS 140/7(1)(c) (“The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”)
The FOIA applies to any public record within the control of a public body; government-owned e-mail accounts or hardware constitute public records which are presumptively open. 5 ILCS 140/2; 5 ILCS 140/1.2. That is, a public body can withhold “private matter” contained within this public record only if it can show—by clear and convincing evidence—that the private matter qualifies for any specific exemption under the FOIA. See 5 ILCS 140/1.2; 5 ILCS 140/7. For example, the public body may attempt to invoke 5 ILCS 140/7(1)(c), arguing that releasing the private matter would amount to an invasion of privacy. But to do so successfully the public body must provide facts that demonstrate that disclosing the records would be “highly personal or objectionable to a reasonable person and [that] the subject's right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(1)(c); see 5 ILCS 140/1.2. The FOIA makes clear that “[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” 5 ILCS 140/7(1)(c).
Emails and text messages relating to public business are public records, even if those records are on privately owned devices. City of Champaign v. Madigan, 2013 IL App (4th) 120662, 992 N.E.2d 629. See also, the binding PAC opinion issued as PAC 17-013. Information not relating to public business on a privately-owned device is not subject to disclosure. See Quinn v. Stone, 211 Ill.App.3d 809, 570 N.E.2d 676, 156 Ill.Dec. 200 (1st Dist. 1991).
The statute does not specifically address e-mail. However, there is no reason to treat e-mail any differently from any other record under the statute. See Ind. Admin. R. 9(D)(2) (rules for public access to court records apply to all court records, no matter how the information was created, collected, or submitted to the court, and independent of the technology or format of the information). However, certain emails are excluded from the general access rule. See Ind. Admin. R. 9(G)(2)(i) (excluding from public access all “personal notes and e-mail, and deliberative material, of judges, jurors, court staff and judicial agencies, and information recorded in personal data assistants (PDA’s) or organizers and personal calendars”); id. 9(G)(2)(g) (excluding email addresses that specifically identify certain witnesses and certain judicial employees’ places of residence).
Public records requests for emails have the potential to be voluminous. In Anderson v. Huntington Cnty. Bd. Of Comm’rs, the Indiana Court of Appeals addressed the “reasonable particularity” requirement, Indiana Code Section 5-14-3-3(a)(1), in the context of email requests. 983 N.E.2d 613, 617–19 (Ind. Ct. App. 2013). There, the plaintiff made four requests (each for a different employee) for emails sent or received within a four-and-a-half month time span. Id. at 614. While the county spent ten hours and bought new software to retrieve 9500 emails, the county was not under a legal obligation to do so because the requests were not reasonably particular. Id. at 615.
E-mail is not specifically addressed. However, the public is permitted access to "data" and "'[d]ata' means a representation of information, knowledge, facts, concepts, or instructions that has been prepared or is being prepared in a formalized manner and has been processed, or is intended to be processed, in a computer. Data may be stored in any form, including but not limited to a printout, magnetic storage media, disk, compact disc, punched card, or as memory of a computer." Iowa Code § 22.3A(1)(d). This would appear to include e-mail. See also Diercks v. Main, 894 N.W.2d 12 (Iowa Ct. App. 2016) (interpreting a request for emails as it would a request for a physical record and finding the emails did not need to be produced to the public as they were due diligence work product).
The definition of open records was amended in 2016 to clarify that private emails of “any officer or employee of a public agency” made “pursuant to the officer's or employee's official duties and which is related to the functions, activities, programs or operations of any public agency” are subject to KORA. This amendment to the definition of public records was largely in response to controversy related to an open records request for emails sent by the governor’s budget director and a resulting attorney general opinion, Kan. Att’y Gen. Op. 2015-10. The attorney general was instrumental in drafting the legislature’s 2016 amendment which, according to the attorney general’s legislative testimony, applies to “the private email accounts of state employees” if those accounts are used for official purposes.
E-mail messages are not treated differently than any other public record.
E-mail messages constitute public records under Ky. Rev. Stat. 61.870(2), which defines a public record as “all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics… .” Id.
Records created on public equipment, whether for agency or personal purposes, must be disclosed under the Act unless the agency can articulate a specific exception. 00-ORD-97. See also 99-ORD-112 (a school district improperly withheld a copy of pornographic materials allegedly copied from an Internet site by a school district employee. "Records which were obtained on public time and on public equipment are, in our view, public records"); 98-ORD-92 ("telephone records for calls originating from a telephone line used in a legislative leadership office may be disclosed"); 98-ORD-31 ("a tape recording documenting a personal conversation of some duration between a Division of Fire and Emergency Service employee and another employee on a telephone extension dedicated to public use for 911 emergency calls may be disclosed"); and 96-ORD-238 (“records reflecting the names and facsimile numbers of all facsimile transmissions made for personal, and not agency purposes on agency equipment, may be disclosed”).
Private matters conveyed over government e-mail are subject to the Open Records Act where the sender is a state employee and the e-mail was sent on a work computer during work hours. Justice and Public Safety Cabinet v. Malmer, Franklin Circuit Court No. 06-CI-1373 (Nov. 19, 2007) (“The public has a right to know the contents of non-work related emails transmitted through the state email system by state employees being paid with tax dollars during working hours.”) This rule does not apply to a private citizen who served solely in a volunteer capacity in state government. Gannett v. Governor Ernie Fletcher, Franklin Circuit Court No. 05-CI-1015 (May. 17, 2006).
The Kentucky Open Records Act defines a public record as any record “prepared, owned, used, in the possession of or retained by a public agency.” Ky. Rev. Stat. 61.870(2). As such, if a public agency prepared, owned, used, possessed or retained the document, it is subject to the Act, even if it were contained on a private e-mail account.
Kentucky’s General Assembly created a new exemption to the Open Records Act’s mandate of disclosure in 2018, which applies to “communications of a purely personal nature unrelated to any governmental function.” Ky. Rev. Stat. 61.878(1)(p). The exemption has not yet been the subject of Attorney General decisions or judicial opinions.
The statutory definition of “public record” includes all “records . . . regardless of physical form or characteristics.” La. Rev. Stat. Ann. § 44:1. Thus, governmental e-mail should be treated as a public record and should be produced to a requester absent an applicable exemption.
The Act defines “public records,” as records having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state.” There is no limitation based on where the records are located. Thus, private e-mails on government computers or servers should not be held to be “public records,” while public matters on private e-mail should be subject to Act.
E-mail is a public record. 1 M.R.S.A. § 402(3). According to the Office of the Maine Attorney General, “Any record, regardless of the form in which it is maintained by an agency or official, can be a public record. As with any record, if the e-mail is ‘in the possession or custody of an agency or public official of this State or any of its political subdivisions, or is in the possession or custody of an association, the membership of which is composed exclusively of one or more of any of these entities, and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business’ and is not deemed confidential or excepted from the Freedom of Access Act, it constitutes a ‘public record’.” Maine Freedom of Access, Frequently Asked Questions, https://www.maine.gov/foaa/faq/index.shtml (last visited Oct. 2, 2018).
With the exception of computer programs, technical data, logic diagrams and source code related to data processing or telecommunications that qualify as trade secrets, “any document created or stored on a State Government computer must be made available in accordance with” the public records law. 5 M.R.S.A. § 1976.
Agency e-mail is a public record. 81 Op. Att’y Gen. 140 (1996) (Agency printed and electronically stored versions of e-mail messages are public records). An e-mail discussing public matters via public hardware is a public record, but an e-mail discussing private matters via public hardware is not a public records. Id. An e-mail discussing public matters via private e-mail is a public record, whereas an e-mail discussing private matters via private e-mail is not a public record. Id.
At least one unpublished decision has directly confirmed that “[t]he FOIA definition of ‘writing’ is broad enough to include electronic recording of meaningful content, including email.” Edwards v. Oakland Twp., No. 320133, 2015 Mich. App. LEXIS 590, *30 (March 19, 2015) (unpublished). No published decision has ever held otherwise, and in fact several have evaluated requests for the production of emails by assuming they are “writings” and moving on to examine the applicability of other defenses. See, e.g., Howell Education Association v. Howell Board of Education, 287 Mich. App. 228, 238, 789 N.W. 2d 495 (2010) (noting that “E-mail has in essence replaced mailboxes and paper memos in government offices,” and focusing instead on whether the emails at issue were public or private records). Nevertheless, the courts have also implored the legislature to clarify the application of FOIA to emails, complaining that the issues related to email “could not have been foreseen”, id. at 234, when FOIA was last updated, resulting in a “situation akin to that of a court being asked to apply the laws governing transportation adopted in a horse and buggy world to the world of automobiles and air transportation.” Id. at 235. The holding of the Howell decision was that personal emails are not public records, however, merely because the emails are retained by the public body computer system, “at least ...[when the agency’s acceptable use policy] does not expressly provide that e-mails are subject to FOIA.” Howell Education Association v. Howell Board of Education, 287 Mich. App. 228, 231, 789 N.W. 2d 495 (2010).
No statutes or case law address this specific issue. An attorney general opinion, Neb. Op. Att'y Gen. 04007, states that e-mails, faxes, or other electronic communications between elected officials and governmental staff are public records unless there is a specific statute that allows particular electronic materials to be kept confidential. Subsequent statements by the Attorney General in Opinions and Disposition letters reinforce the position that emails are public records so long as they are “of or belonging to” government.
Emails may be considered to be public records under the NPRA. NRS 239.010. Private emails will retain their character as private if they relate only to an individual’s personal affairs and do not affect the conduct of agency business. There are pending cases at the Nevada Supreme Court addressing this question.
The Statute has been amended to define information to mean: "knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.” RSA 91-A:1-a,IV. Moreover, it expressly covers information maintained in “electronic format.” RSA 91-A:4,V.
The content of the e-mail message would govern whether it must be disclosed. RSA 91-A:2-a states that a public body is not to communicate in a manner that “circumvent[s] the spirit and purpose of this chapter as expressed in RSA 91-A:1.” If the message related to a function of a public body and was on the hardware of an official or employee of that public body, a court probably would rule the message is covered by the Statute and it would have to be disclosed unless it came within an exemption. If the email contains information that does not reveal “what the government is up to,” the message probably would not be disclosed.
Email constitutes a government record. OPRA defines a government record broadly as any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.
“As is the case with other forms of communication, e-mails fall within the scope of this expansive provision.” (See McGee v. Township of East Amwell, 416 N.J. Super. 602, 614 (App. Div. 2010).
Although there are no reported Appellate Division or Supreme Court cases deciding the issues of whether public emails on private computers and private emails on public computers are subject to OPRA, there are unreported Law Division cases finding that public emails on private computers are subject to OPRA, while private emails on public computers are not.
The Inspection of Public Records Act provides a broad definition of public records without regard to physical form or characteristics. NMSA 1978 § 14-2-6(G) (2013) (including in definition of “public records” that all “materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business.). If public matter is contained in a computer database and relates to public business, the matter constitutes a public record. See NMSA 1978 § 14-2-6(G), NMSA 1978, §§ 14-3-15.1 and 14-3-18(C) (2011). The New Mexico Court of Appeals has recognized that email is a public record subject to inspection. See ACLU of N.M. v. Duran, 2016-NMCA-063, ¶ 1, 392 P.3d 181, 183.
Email is not expressly addressed in the Public records law but falls within the definition of a public record, which includes any “documents, papers, letters, . . . regardless of physical form or characteristics, made or received . . . in connection with the transaction of public business.” G.S. § 132-1(a). The attorney General of North Carolina has advised public agencies that email messages related to the performance of a public employee’s duties are public records. The AG’s open government guide confirms: “Public records include both paper and electronic documents, emails, papers …”
Given the definition of public records as those records related to the transaction of public business, all materials on a government-issued computer or email address should be public if they relate to government business.
Given the definition of public records as those records related to the transaction of public business, private matter on a government-issued computer or email address arguably is not a public record. However, Governor Perdue signed Executive order 18, which governs certain executive branch employees and provides that all materials on government-issued equipment or email accounts will be treated as public records regardless of its content.
Courts consistently have held that it is the content, not the location, of information/documents that governs whether it is public. Therefore, information related to government functions that resides in a private email account would be treated as public. News Reporter Co., Inc. v. Columbus Cty., 184 N.C. app. 512, 516, 646 S.E.2d 390, 393 (2007) (“Whether a document is part of a ‘personnel file,’ within the meaning of § 153a-98(a), depends upon the nature of the document and not upon where the document has been filed.”)
Because the nature of an email, rather than its location, governs, private email on a private email account would not be considered a public record. However, Governor Perdue signed Executive order 18, which governs certain executive branch employees and provides that all materials on government-issued equipment or email accounts will be treated as public records regardless of its content.
A “record” under North Dakota law means recorded information of any kind, regardless of the physical form or characteristic by which the information is stored, recorded, or reproduced, which is in the possession or custody of a public entity or its agent and which has been received or prepared for use in connection with public business or contains information relating to public business. N.D.C.C. § 44-04-17.1(16) (emphasis added).
E-mail is treated as a record if it is in the possession or custody of a public entity or its agent and has been received or prepared for use in connection with public business or contains information relating to public business. N.D.C.C. § 44-04-17.1(16); see, e.g., N.D. Op. Att’y Gen. 2008-O-15 (2008); N.D. Op. Att’y Gen. 2008-O-07 (2008).
Public matter on government e-mail or government hardware is also an open record if both criteria are met and no exception applies. N.D.C.C. § 44-04-17.1(16).
Certain confidential matter on government e-mail or hardware, however, must be redacted before release. See, e.g., N.D. Op. Att’y Gen. 2006-O-13 (2006) (e-mails containing educational records and other personal information of students required to be redacted under Family Educational Rights and Privacy Act); see also N.D. Op. Att’y Gen. 2005-O-05 (2005).
As long as an exception does not apply, public matter on private e-mail is an open record, if it is in the possession or custody of a public entity or its agent and has been received or prepared for use in connection with public business or contains information relating to public business. N.D.C.C. § 44-04-17.1(16); see, e.g., N.D. Op. Att’y Gen. 2008-O-15 (2008); N.D. Op. Att’y Gen. 2008-O-07, at 5 (2008) (“To allow a person to circumvent the open records law by maintaining public records on a private computer would be inconsistent with past court decisions and Attorney General’s opinions.”).
Private matter on private e-mail likely would not meet the definition of a public record—being in the possession or custody of a public entity or its agent and received or prepared for use in connection with public business or containing information relating to public business. N.D.C.C. § 44-04-17.1(16).
Although the Public Records Act does not address "email" explicitly, the statute applies to email that would be public if the same information were on paper and kept by a public office.
To be a "public record," the recorded information must first be a "record" under R.C. 149.011(G). That provision defines a "record" as "including an electronic record" as defined in another statute, Ohio Rev. Code § 1306.01.
Ohio Rev. Code § 1306.01 defines "electronic record" as "a record created, generated, sent, communicated, received, or stored by electronic means."
The Ohio Supreme Court has ordered a county to produce deleted emails and required the county to pay for the forensic analysis needed to find the requested ones. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 899 N.E.2d 961, 2008-Ohio-6253; see State ex rel. Bowman v. Jackson City Sch. Dist., Ohio App. 4th Dist. No. 10CA3, 2011-Ohio-2228, ¶ 17 (May 5, 2011)(teacher’s inappropriate personal emails on public email systems sent during school hours were public records because the school district relied upon them for disciplinary purposes); State ex rel. Bott Law Grp., L.L.C. v. Ohio Dep't of Nat. Res., 2013-Ohio-5219, ¶ 51 (State agency "shall perform the acts necessary to search its journal for responsive e-mail correspondence that were deleted in violation of its records retention policy, and it shall make reasonable efforts to identify all responsive records stored on the shared servers or on the personal computers of all former ODNR employees who are either identified in relator's records requests or whom are known to have generated or received responsive records.”).
The Ohio Supreme Court has not determined whether an e-mail documenting public business that only appears on an administrator’s private account is a public record. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 894 N.E.2d 686, 2008-Ohio-4788.
Emails generated by county employees on county time using county PCs are not public records where their content does not document any official county activity. State ex rel. Wilson-Simmons v. Lake Cty Sheriff's Dept., 82 Ohio St.3d 37, 693 N.E.2d 789 (1998).
If the item is connected with the transaction of official business, the expenditure of public funds, or the administration of public property, electronic mail created by or received by either a State public body or a public body of a political subdivision constitutes a record subject to the Act. 2001 OK AG 46. This would apply even if the email was created, received or stored on the public official’s private electronic device. 2009 OK AG 12. Electronic mail can be retained in either electronic form or on paper. However, if it is retained on paper, the agency must ensure that sufficient documentation in other records exists elsewhere in the agency so a person seeking the information could ascertain all significant material contained in the electronic record. 2001 OK AG 46. A public body shall allow a requester access to specific data in the electronic format file so long as the system permitting the electronic access is secure enough to preserve the records and safeguard them from destruction or alteration. If the record contains information which is required by law to be kept confidential, and the agency cannot protect that confidential information in the electronic format, the agency must provide the information in a format which allows the confidential information to be redacted. Id. An electronic communication "created by" a third-party public body or official and sent to a legislator would be a record of the creating public body or official subject to the Oklahoma Open Records Act in its custody, control or possession. An electronic communication from a legislator sent to a third-party public body or official would become a "record" upon being "received by" the public body or official and thereby become subject to the Act in the custody, control or possession of the third-party public body or official. 2008 OK AG 19. Similarly, an electronic communication from an employee of the Legislature would become a "record" upon being "received by" a third-party public body or official and thereby become subject to the Oklahoma Open Records Act in the custody, control or possession of the third-party public body or official and an electronic communication "created by" a third-party public body and sent to an employee within his or her scope and duties of the Legislature would be a record of the public body subject to the Act in the custody, control or possession of the creating agency. 2008 OK AG 19.
While not specifically ruling on the issue, the Oklahoma Attorney General has footnoted in one opinion that an e-mail between State or local government employees making lunch plans (if such use is permitted by the agency) generally is not in connection with public business, spending public money or administering public property, and therefore generally would not be a record. The Attorney General went on to say that whether a particular e-mail message fits this definition is a question of fact. 2001 OK AG 46.
The Oklahoma Attorney General has opined that who owns an electronic communications device has no bearing on whether an electronic communication created or received on that device is a record. Thus, a communication that meets the definition of a record under the ORA is subject to disclosure regardless of whether it is created or received on a publicly or privately owned personal electronic communication device, unless some provision of law allows it to be kept confidential. Further, the location of the electronic communications equipment does not matter, whether it is used in a governmental office, in a public official's or employee's home, or somewhere in transit between them. 2009 OK AG 12.
E-mails and other electronic communications made or received in connection with the transaction of public business, the expenditure of public funds or the administration of public property, are subject to the Oklahoma Open Records Act regardless of whether they are created, received, transmitted, or maintained by government officials on publicly or privately owned equipment and communication devices, unless some provision of law makes them confidential. 2009 OK AG 12.
The Oregon Attorney General has determined that e-mails are public records, subject to disclosure if non-exempt and relating to the conduct of the public’s business. Attorney General Manual, § I.C.1.
If it relates to the public’s business, e-mail is treated the same as any other public record under, and is subject to, the same disclosure provisions and exemption claims. In other words, an e-mail that relates to the public’s business is a public record, regardless of where it is stored. ORS 192.311(5)(a) (formerly ORS 192.410). If an e-mail does not relate to the public’s business and it is contained on a privately owned computer, then it is by statutory definition not a public record. ORS 192.311(5)(b) (formerly ORS 192.410).
The Attorney General Manual suggests that if a privately created record is used or retained by a public official and it relates to the public’s business, it may become a public record. See Attorney General Manual, § I.C.2.
The APRA treats electronic mail messages as a public record, except specifically for any electronic mail messages of or to elected officials with or relating to those they represent and correspondence of or to elected officials in their official capacities. R.I. Gen. Laws § 38-2-2(4)(i).
Assuming that the provision in the definition of public records "regardless of physical form or characteristics" extends to electronic records, e-mail will be treated just as any other document. S.C. Code Ann. § 30-4-20(c).
If an e-mail is “prepared, owned, used, in the possession of, or retained by a public body” it is a public record. S.C. Code Ann. §30-4-20(c).
Matter unrelated to the activities or operation of a public body would not be a public record.
Email is not specifically addressed. Generally, the physical form of a record is irrelevant under SDCL §1-27-1.1. Theoretically, at least, email can be a record. However, work-related "correspondence" and "personal correspondence" are protected under SDCL §§1-27-1.5 (12) and (19). If email does not fall within “correspondence” exception, presumably accessible. Private matter in government email is likely confidential. The status of public matter in private email is uncertain, but presumably private matter in private email is confidential.
The Act has no provision specifically dealing with e-mail, except for a provision that specifies that e-mail may be a public record. T.C.A. § 10-7-512. But see T.C.A. § 10-7-504(q)(1)(B) & (t)(I)(B) (certain email addresses are confidential).
Email of public employees is subject to a case-by-case review to determine whether the record qualifies as a public record. Brennan v. Giles County, 2005 WL 1996625 (Tenn. Ct. App., Aug. 18 2005).
Private matter on government email or government hardware is probably not a public record. Id. (adopting a Florida case’s rationale that private or personal email is not a public record).
Public matter on private email is probably a public record. Id.
Private matter on private email is probably not a public record. Id.
Section 552.002(a-2) provides that “public information” includes “any electronic communication” made “in connection with the transaction of official business.” 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 Tex. Att’y Gen. Op. No. GA-4274 (2003); Tex. Att’y Gen. OR2017-07695 (2017). If collected, assembled, or maintained or in connection with the transaction of official business, the records will be subject to disclosure. See id.
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.
GRAMA defines a “Record” to include “electronic data,” “documents,” and “other documentary material regardless of physical form or characteristics.” Utah Code § 63G-2-103(22)(a). Given this definition, communications regarding a public matter on government e-mail or hardware are presumably public unless otherwise specifically exempted. Utah Code § 63G-2-103(22)(a). However, “Record” does not include “personal communication[s] prepared or received by an employee or officer of a governmental entity: in a capacity other than the employee’s or officer’s governmental capacity; or that is unrelated to the conduct of the public’s business.” Utah Code § 63G-2-103(22)(b)(i)(A),(B). The meaning of “capacity other than the employee’s or officer’s governmental capacity,” and whether it extends to text messages or instant messages regarding a private matter on government hardware or a public matter on private hardware, is not addressed.
A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.” 1 V.S.A. § 317(b) (emphasis added). Thus, emails would fall under the statute’s definition of a “public record.” Last year the Vermont Supreme Court clarified that even emails “located in private accounts of state employees or officials” are public records if they were “produced or acquired in the course of agency business.” Toensing v. AG of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).
Electronic mail falls within the definition of "public records" and is subject to disclosure. Va. Code Ann. § 2.2-3701. The subject matter determines whether the email qualifies as a public record, regardless of whether it is on public or private hardware. Burton v. Mann, 74 Va. Cir. 471, 474 (Loudoun Cir. Ct. 2008).
E-mail is not treated any differently than other records. E-mail metadata is also a public record, but a requester seeking metadata should say so specifically in the record request. O’Neill v. Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010).
In Tiberino v. Spokane County, 103 Wn. App. 680, 13 P.3d 1104 (2000), an appellate court held that personal emails sent by a public employee on her work computer were exempt from disclosure under the PRA’s privacy-based exemption for public employee files. Applying the statute’s privacy test, the court found that disclosure of the records was of no legitimate public interest and that release would be highly offensive. The case does not state a blanket rule regarding private use of public email accounts, but rather appears to turn on the content of the emails. The emails, which the court reviewed in camera, apparently disclose to the employee’s mother and sister that she had been raped.
In O’Neill v. Shoreline, 170 Wn.2d 138, 240 P.3d 1149 (2010), the Washington Supreme Court held that the home computer used by a city official to send an email is subject to inspection by the city to determine whether a requested record still existed. A dissenting justice noted that public officials’ home computers likely contain personal information that is not subject to the PRA, and raised the possibility that such searches could violate officials’ privacy rights. In Nissen v. Pierce County, 183 Wn.2d 863, 357 P.3d 45 (2015), the Washington Supreme Court held that the content of work-related text messages sent and received by a public employee were “public records.”
The definition of a “writing” in the FOIA includes e-mail communications, Syl. Pt. 2, Associated Press v. Canterbury, 224 W. Va. 708, 688 S.E. 2d 317 (2009); see W. Va. Code § 29B–1–2(5). If an email "relates to the conduct of the public's business," judged by either its content or context, it is a public record subject to disclosure. W. Va. Code § 29B–1–2 (4).
There have been no court decisions indicating how public records contained in private e-mail archives should be treated. It is possible that the West Virginia Court may require disclosure upon a finding that private e-mail was used as a ruse to conduct public business while avoiding FOIA disclosure requirements.
No court decisions have yet addressed how private records contained in private e-mail archives should be treated. However, the 2015 amendment of the West Virginia FOIA’s definition of “public record” requires a court to find information contained in a private email on a public internet subject to disclosure if, judged by its context, it “relates to the conduct of the public's business.”
Emails are generally covered as electronic records and the statute specifically states that written electronic communication received by a governmental entity are covered, whether at a meeting or outside a meeting. W.S. §16-4-201(v). No Wyoming case has specifically addressed whether it matters that the email was created or received on a government device. An email purely on a private matter probably would not be in the furtherance of the government’s official function. However, if an email that does directly relate to the transaction of official business was used by a governmental entity in the course of an investigation, it may be available for public inspection. Shaeffer v. University of Wyoming, 2006 WY 99.