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Public employees' 'personal' e-mail not public record

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NEWS MEDIA UPDATE   ·   ARIZONA   ·   Freedom of Information   ·   Aug.

NEWS MEDIA UPDATE   ·   ARIZONA   ·   Freedom of Information   ·   Aug. 15, 2006

Public employees’ ‘personal’ e-mail not public record

  • An appellate court opinion allowing government employees to shroud e-mail messages created on government computers by declaring them “personal” will be appealed by the newspaper seeking the records.

Aug. 15, 2006  ·   Private e-mail messages written by government employees and sent from publicly owned computers are not subject to Arizona’s public disclosure laws, the state Court of Appeals in Tucson said in a decision that Phoenix Newspapers Inc. plans to appeal to the state’s highest court.

“If left standing, this decision would seriously undercut the public’s ability to keep tabs on public officials and [on] public resources,” said David Bodney, attorney for The Arizona Republic. “It allows a public official to pronounce his own e-mail as purely personal and therefore beyond public review.”

A three-judge panel, relying on a previous decision by the Arizona Supreme Court, ruled Aug. 4 that in order for an e-mail message to be deemed public, it must not only be created by a government employee on a government computer, but it “must also have some relation the official duties of the public officer that holds the record.”

“We see no such relation between [the employee’s] purely personal e-mails and his official duties,” Chief Judge John Pelander wrote for the panel, reversing a trial judge’s earlier ruling ordering the release of all the public employee’s e-mail messages.

The Republic sought all e-mail messages sent and received by Pinal County Manager Stan Griffis in his last 60 days in office, from Oct. 1 to Dec. 2, 2005, in an investigation of Griffis’ alleged spending on $21,000 worth of sniper rifles and related materials, and a subsequent African safari, Bodney said.

Griffis challenged disclosure of 120 of his e-mail messages as “‘documents of a personal nature,’ including ‘communications regarding a personal vacation and . . . purchases from online retailers,'” according to the court’s opinion.

In agreeing with Griffis, Judge Pelander wrote that the “content of the e-mails . . . is merely a record of Griffis’s personal affairs and falls outside the scope of information necessary for the public to have knowledge of ‘the manner in which he conducts his office and performs his duty.'”

Judge Pelander, who was joined by Judges J. William Brammer Jr. and Peter J. Eckerstrom, said the court’s decision did not address Pinal County’s assertions that Griffis’ e-mail messages were also public records under the County’s computer policies. That determination could only be made through entirely new litigation, the court said.

Bodney said the newspaper will wait to see if the Supreme Court takes the case before considering that alternative.

(Griffis v. Pinal County, David J. Bodney and Peter S. Kozinets, Steptoe & Johnson, Phoenix)LC

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