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State workers' personal e-mails and phone records not public

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State workers’ personal e-mails and phone records not public

  • Government employees’ personal e-mails and phone records, sent and received on government equipment, are not public records, rules the Florida Supreme Court.

Sep. 17, 2003 — The personal e-mails of state employees, sent or received on government-owned computers, are not public records, the Supreme Court of Florida ruled last Thursday. On Monday, Sept. 15, the court declined to review a similar state appellate court decision relating to telephone records.

Thursday’s unanimous decision did not address who determines which documents are to be released in accordance to Florida’s Public Records Act. State employees are able to categorize their e-mails as personal or public — without any oversight — in response to a Public Records Act request.

In October 2002, a reporter from the St. Petersburg Times requested the e-mail records of two city of Clearwater employees, Garry Brumback and John Asmar, accused of using their government offices to run a private business. City officials allowed the two men to determine which e-mails to release, prompting the Times to file suit against the city seeking e-mail records the employees deemed personal.

The Times was joined in the suit by the Florida Attorney General.

In its ruling last week, the court said the content of e-mails, not their location on a government computer, is what characterizes correspondence as public or private. For an e-mail or any other record to be public under state law, it must be “in connection with the transaction of official business.” The Supreme Court’s ruling upheld decisions by both a circuit court and appellate court.

“The determining factor is the nature of the record, not its physical location,” wrote Supreme Court Justice Barbara Pariente.

According to First Amendment advocates, the big losers in the case are the citizens of Florida who expect accountability from their state officials.

“We see this as unfettered permission for fraud, waste and abuse,” George Rahdert, attorney for the St. Petersburg Times, told The Orlando Sentinel. “What we are left with is a situation where government employees can make their own unilateral decisions about what computer communications are public and which are private, and that obviously will be open to abuse.”

Robert Freeman, executive director of the New York-based Committee on Open Government, pointed out that the same issue may be decided differently elsewhere.

“In New York, I believe that the answer would be different, primarily because of this state’s definition of the term ‘record,’ which clearly includes information stored on a government computer.”

In its ruling, the court did say that public employees should have no expectation of privacy while working on government-owned computers. This suggests that while personal e-mails are not required to be released under the state’s Public Records Act, government agencies could release those e-mails at their own discretion.

Monday’s decision left intact a similar ruling by the District Court of Appeal in Tallahassee. In that case, five Florida House of Representatives staff employees were permitted to redact phone records they deemed private before turning over the records to The Orlando Sentinel in response to a Public Records Act request. The calls were made on state-issued cell phones.

(State of Florida v. City of Clearwater; Times Publishing Company v. City of Clearwater; Media Counsel: George Rahdert, Rahdert, Steele, Bryan & Bole, St. Petersburg; Media General Operation, Inc. v. Feeney, Media Counsel: David S. Bralow, Tribune Company, Orlando) GP

© 2003 The Reporters Committee for Freedom of the Press

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