Local Government E-mail and the Freedom of Information Act

E-discovery under State Open Records or Sunshine Laws

Increasingly, public agencies are required to search for and turn over e-mail records in response to freedom of information and open records requests.  

Generally speaking, under either state or federal law, a freedom of information act requires government to disclose requested records to citizens. Sometimes a FOIA might be known as (or associated with) an open records act or a sunshine act. 

One example: A Kentucky judge required state government to give a man copies of e-mails between his wife, a state employee, and another state employee whom the man suspected was having an affair with his wife. (Associated Press, “Judge: Ky. Man Can See His Wife's E-Mail,” Nov. 20, 2007.)

Another example:

A newspaper requested under Arizona’s open records law access to records of e-mail by a county official on county computers. The official fought the request, claiming the records were personal and therefore not subject to disclosure. The Arizona Supreme Court held that the records must be shown to a trial judge. The judge should then decide whether they are personal records (deserving of privacy), which are to be withheld, or public records. (The Reporters Committee for Freedom of the Press, "Judge must decide whether e-mail is private," April 27, 2007.)

Third example:  A West Virginia judge held the state's FOIA required the state to release e-mails of the state's Supreme Court Chief Justice. The justice had send the e-mails from his government account to the head of a private coal company.  (The Reporters Committee for Freedom of the Press, "Even high court subject to FOIA in West Virginia," September 18, 2008). Although the released e-mails did not pertain directly to the court's internal administration or cases pending before the justice, they touched on more than merely personal matters.  They at least mentioned upcoming supreme court elections.

To respond to these requests takes time and resources on the part of agency IT staff. Haphazard records management makes the job more difficult. Agencies therefore have incentive to keep organized, searchable e-mail records.  And they are wise to insist that all employees (including governors and supreme court justices) route all official messages to or through centrally-controlled archives.

These cases are just random examples.  I wouldn't be surprised to find similar cases in other states, whether Indiana, Ohio, Colorado, Tennesee, Arkansas, Indiana or wherever.

Update:  Reportedly, when Sarah Palin resigned as governor of Alaska, she cited $2 million as the cost incurred by the state to respond to FOIA requests about her.   FOIA is a growing expense for government.  Governments need to employ technology to contain that cost.  For example, any time government delivers information to one FOIA requester, it should publish that information on the web.  Web publication will avoid the cost of retrieving and culling the information again under future requests. 

--Benjamin Wright

Mr. Wright is an advisor to Messaging Architects, developer of e-mail archival products for public enterprises.

Comments

[tamara white-byrd]

so with this i can find my husbands texts and call logs? how much is it?

[Jim Ash]

e-discovery – in the Texas Red Light Camera case the issue of PI licensing is in question. If the court finds that the companies are performing under the close supervision of the governmental agency, will it then follow public information laws would apply to private companies acting as governmental agents? The Texas Government Code sec. 552.003(1)(A)xii already defines a “Governmental body” to include “the part, section, or portion of an organization, corporation, commission, committee, institution, or agency that spends or that is supported in whole or in part by public funds”.

[Benjamin Wright]

Jim Ash: You ask an interesting and insightful question. I don't know the answer. Even if I researched the question, I suspect I could not find a definitive answer. A definitive answer might come only as the result of fresh litigation. --Ben