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Personal e-mail messages not subject to open records laws

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    NMU         FLORIDA         Freedom of Information         May 20, 2002    

Personal e-mail messages not subject to open records laws

  • A Florida appeals court ruled that two Clearwater city employees can determine whether their own e-mail messages are personal or private and are not required to release those messages to a Florida newspaper.

A Florida appeals court May 10 allowed the city of Clearwater to withhold e-mail messages sent between two employees, determining that the messages were personal and exempt from the state’s open records law.

The court held that the e-mail messages were not public records because they were not made pursuant to a statute or to further government business.

“This case demonstrates that the Public Records Act . . . , although permitting broad public access to public records, is not an ideal tool for private citizens who wish to investigate the nongovernmental activities of government employees during work hours,” wrote Judge Chris W. Altenbernd, in the court opinion.

A reporter from the St. Petersburg Times made a request for the e-mails retrieved by two Clearwater employees from their computers. City policy allowed the employees to sort through their own e-mail messages, private and public, and release to the reporter what they determined was public. No one else looked through the employees’ messages. The messages that the employees determined were public were copied onto a CD-ROM and given to the Times reporter.

The Times sued the city to get an injunction to force the release of all of the e-mail, arguing that it was entitled to the rest of the messages as well. The trial court denied the request.

The appeals court addressed the issue of whether e-mail was a public record merely by virtue of its existence on a public resource. The court rejected the Times’ argument that the city failed as custodian of the records when it allowed the employees to determine which records were public.

The court noted that the request was to uncover how public employees used their time at work, including the amount of time spent on personal business.

The court noted that the Legislature was better equipped than the court to address the balance between the employees’ privacy in e-mail and the public interest to know how public employees may have misused their time in this particular case since the issues in which the court could resolve were not raised by the parties. First, this case did not involve e-mail messages from an employee whose job it was to regulate employee misuse of government computers. Second, the Clearwater employees did not raise their right to privacy as a defense so the court could not address it or weigh it against the public interest to know. Finally, there was no request by the newspaper for an in camera inspection of the e-mail to determine whether the unreleased messages were public or private.

The court ruled that the newspaper’s request for all e-mail messages was overbroad.

(Times Publishing Co. v. City of Clearwater; Media counsel: George K. Rahdert, Alison M. Steele, and Penelope T. Bryan, Rahdert, Steele & Bryan, P.A., St. Petersburg) MM

© 2002 The Reporters Committee for Freedom of the Press

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