Wisconsin Decides Whether Personal Emails Are Public Records

The Wisconsin Supreme Court will hear a case in November that decides whether personal emails of public employees are subject to the state's open records laws. The case stems from the request of a private citizen who wanted to know if public school teachers were violating school policy by using work email to discuss school board elections. When asked for email messages "from the computer [the teachers] use[d] during their school work day," teachers objected to providing emails of a purely personal nature. The Court must decide whether the public interest in disclosure trumps the privacy and "reputational" rights of Wisconsin citizens.

More here.

Ala. lawmakes can use private e-mail as Palin did, judge rules

A Superior Court judge ruled that Alaska state law doesn't prohibit the use of private e-mail accounts to conduct state business, the AP reported.

This is why states must look hard at outlawing the use of private e-mail by elected officials to conduct public business. This is a fairly straightforward legislative fix, no? No g-mail to discuss public business! Note that the court here is all but calling for the legislature to fix this.

A judge ruled Wednesday the Alaska governor's office can use private e-mail accounts to conduct state business, as former Gov. Sarah Palin did.

Superior Court Judge Jack W. Smith said in his ruling there is no provision in Alaska state law that prohibits the use of private e-mail accounts when conducting state business.

The case stemmed from a lawsuit filed by Anchorage resident Andree McLeod, who contended such use of private e-mails denies citizens the right to inspect public records.

More here.
Also, Court: Palin's e-mail practices not a violation of open records law, Reporters Committee for Freedom of the Press.

Staffers say S.C. governor used private e-mail for public business

Will Folks, former spokesman for South Carolina Gov. Mark Sanford, says he checked his private e-mail at least 10 times a day when working for the governor, McClatchy-Tribune News Service reported. Of the 3900 pages of Sanford's messages provided to The State newspaper, 174 e-mails were from his private account. But those didn't contain much discussion of state business. Current Sanford spokesman Joe Sawyer says the office doesn't use private e-mail to get around open records laws. Regardless, Ashley Landess, president of the South Carolina Policy Council, said her group will now ask other state government leaders to turn over private e-mails concerning public matters.

Former staffers for South Carolina Gov. Mark Sanford said they routinely used private e-mail accounts to discuss sensitive political and policy decisions with Sanford.

The governor's office denies the practice was used to shield those communications from the public.

The state's Freedom of Information Act makes any discussion of state business on state computers a public document.

More here.

Nev. AG rules governor's personal e-mails aren't public

The Nevada attorney general's office decided that personal e-mails on Gov. Jim Gibbons' state computer are not pubic records, the AP reported. Reno Newspapers Inc. is seeking all e-mails Gibbons sent on his state computer and asked for a log of recipients, senders, subject matters and reasons public access was denied. The brief from the AG's office said the state has "no pre-litigation duty" to create the requested index.

The Nevada attorney general's office says personal e-mails on Gov. Jim Gibbons' state computer are not public records.

In a Nevada Supreme Court brief, the AG's office says personal messages or those not concerning public business are not subject to a public records request.

The filing is in response to an appeal by Reno Newspapers Inc., which is seeking all e-mails sent by Gibbons on his state computer from January to June 2008.

More here.

Are personal e-mails sent via a work computer public?

The Wisconsin Supreme Court will consider whether personal e-mails sent on work computers are public, the AP reported. A citizen requested e-mails sent by Wisconsin Rapids School District teachers to determine how much time they were spending on personal business during school hours. A judge ordered the e-mails to be released, but the teachers appealed.

The Wisconsin Supreme Court will decide whether personal e-mails sent by public employees are subject to the state's open records law.

The case involves five teachers in the Wisconsin Rapids School District. A citizen asked for e-mails sent from their work computers to determine if they were spending too much time on personal business.

The employees did not object to releasing work e-mails but filed a lawsuit to keep their personal messages private. A judge ordered the e-mails made public, but the teachers appealed.

More here.

NFOIC Summit: Public access threats

Richard J. H. Varn, director of the Coalition for Sensible Public Records Access and the chief information officer for the City of San Antonio, spoke on the threats to and values of public access. Here's part one of notes on his 2009 NFOIC Summit session:

Threats to public access:

• Identity theft and security: The problem with identity theft is not with public records. It would flourish even if all access was cut off. A social security number is only worth about 10 cents on the black market. Concerns over identity theft, however, had led to more restrictions to public access than any other issue in the past couple decades. When public identifiers are not made public, it is nearly impossible to distinguish one person from another. It leads to more false positives and false negatives.
• Implementing public policies by redacting the truth: Because people with criminal records have difficulty finding jobs, apartments, etc., there has been a trend to expunge convictions from public records. However, this doesn't hide the fact that someone has been convicted. It's still in the police blotter archives, and a fellow co-worker could definitely reveal a prior conviction that another employee tried to hide. Redaction doesn't solve the problem. What would solve it is an employability of felons act. Facts can still be acted on. These people need rights.
  
• Increased fees beyond marginal cost and self-funding portal: Florida, for example, passed a cost increase to help solve its budget problems.
• Security concerns lead to overclassification.
  
• Coalition failures: Exemptions for media aren't enough. Citizens should have rights to the same information, and coalitions should champion for them. These citizens who request records are, after all, sometimes valuable sources.
• Private technology, public business: Using private e-mail accounts to conduct public business is ever increasing.
• New technology, same old issues: Just because it's Twitter or the latest social networking fad doesn't mean anyone is excused from providing access and charging only marginal costs.
• Enforcement failures: Obviously, many state coalitions are struggling to add teeth to their state's FOI laws.

New twist in Palin hacker case

Defense lawyer Wade Davies has asked a federal judge to dismiss the four federal charges pinned on David Kernell , the Tennessee college student who allegedly hacked into Gov. Sarah Palin's Yahoo e-mail account, Wired reported. Davis argues that in Tennessee, an act must expose something inherently private and place the victim in a false light for it to be considered an invasion of privacy. This wasn't the case, he says, because "an Alaska court has issued an order requiring Ms. Palin to preserve the correspondence in her private e-mail accounts on the grounds that the e-mails are public records."

A surprise legal maneuver by the defense in the Sarah Palin hacking case could undermine key charges carrying the stiffest potential penalties.

A lawyer for the Tennessee college student charged with hacking into the Alaska governor’s Yahoo e-mail account last year says his client couldn’t have violated Palin’s privacy because a judge had already declared her e-mails a matter of public record.

“He’s not suggesting that e-mail can’t be private,” says Mark Rasch, a former Justice Department cybercrime prosecutor. “He’s saying this particular e-mail was not private or personal because of who she is and because it wasn’t intimate communication.”

More here.

Great news for open government in Oklahoma

From Dr. Joey Senat, Associate Professor at OSU School of Journalism and Broadcasting:

Records of government business belong to the public even if they are created, received or stored on an official's private smart phone or laptop, according to an Oklahoma AG opinion released Thursday.

"To conclude otherwise would allow public officials and employees to circumvent the open records laws simply by using privately owned personal electronic communication devices to conduct public business," the opinion said.

The opinion also prohibits public officials and employees from altering or destroying public records on their private communication devices unlessallowed to do under the state Records Management Act.

"E-mails, text messages 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, [its exemptions] and the Records Management Act regardless of whether they are created, received, transmitted or maintained by government officials on publicly or privately owned equipment and communications devices," the opinion concluded.

Unlike in many other states, attorney general opinions in Oklahoma are binding unless overturned by a court.

Opinion 09-12 noted that government officials and employees increasingly use privately owned "computers, laptops, cell phones, PDAs, smart phones, and other personal electronic communication devices in conjunction with their work."

Public access to such electronic communications became an issue in April 2008. OSU student Jenny Redden, for an independent study with me, reported in The Daily O'Collegian that OSU President Burns Hargis and several hundred other university employees conduct the public's business on their smart phones or cell phones.

OSU administrators claimed the related text-messages, e-mails and numbers dialed were secret. They contended that the ownership of the cellular device, not the substance of its related records, should decide whether those records are public.

That policy earned OSU officials the annual Black Hole Award from FOI Oklahoma Inc. in March.

The notion put forth by OSU poses a serious threat to open government because it contains no limiting principle. If a record is secret because it's on the mayor¹s iPhone, then so are documents on the mayor's own laptop even if he's conducting the public's business on it while seated at his office desk.

Courts and attorneys general in other states have rejected the reasoning used by OSU officials, holding that it is the nature of the record created that determines if it is open to the public.

Oklahoma Attorney General Drew Edmondon's office followed suit, saying that nowhere in the Open Records Act "is ownership of equipment mentioned as a factor in determining what is or is not a record."

"We conclude that who owns an electronic communications device has no bearing on whether an electronic communication created or received on that device is a record," the opinion said. "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.

"Nor does the location of the electronic communications equipment matter, whether it is used in a governmental office, in a public official's or employee's home, or somewhere in transit between them," the opinion said.

The opinion also reasoned: "Like the ORA, the RMA makes no distinction between records that exist on publicly owned electronic communication equipment and those on privately owned equipment. Therefore, public officials may not partially or wholly mutilate, destroy, transfer, remove, alter, or otherwise damage or dispose of records on their personal electronic communications devices, except as provided by law."

Read the AG's opinion here.

Jenny's series on open government at OSU can be found at:
http://ocolly.com/2008/04/17/employee-phone-policy-violates-open-records-law
-experts-say/

http://ocolly.com/2008/04/17/osu-could-cut-costs-by-changing-cell-policy/

http://ocolly.com/2008/04/30/regents%E2%80%99-voting-record-under-investigation/


Thank you to Drew Edmondson and Assistant Attorney General Debra Schwartz for this written opinion. It will go a long way toward protecting open government in Oklahoma.

Thank you, also, to Susan McVey, director of the Oklahoma Department of Libraries, and Bill Young, the department's public information administrator, for requesting the opinion.

Iowa governor releases e-mails from private account

In response to an AP request, Iowa Gov. Chet Culver released some e-mails he sent during his first two years in office, when he used a private server from his campaign rather than a state e-mail account, the AP reported. The AP had requested e-mail communication from Culver and Lt. Gov. Patty Judge about right-to-work and prevailing wage issues. Iowa law does not specifically list e-mails as public records.

Iowa Gov. Chet Culver has released some e-mails he sent in his first two years in office using private computers and non-government servers, a move that follows criticism that he was using private e-mail accounts to dodge public-records law.

Freedom-of-information advocates called the decision a step forward for transparency in state government that counters a trend of public officials who deny access to electronic correspondence.

Joseph P. Sandler, a Washington, D.C.-based attorney for Culver's election campaign, said after researching the matter, he concluded that the governor's e-mails dealing with state business between addresses on non-government servers are public record. He made the decision in response to a public records request by The Associated Press.

More here.

Penn. law likely to change how e-mail is handled

Pennsylvania's new Right-to-Know law includes all electronic information in what is presumed to be a public record. The law is likely to lead to new policies on what is considered public versus private electronic communications and how e-mails are preserved, according to the law firm Nauman, Smith, Shissler & Hall.

Pennsylvania's new Right-to-Know law stands to change the way many government entities administrate public records, particularly the way e-mail messages are handled, according to Guy P. Beneventano, municipal law expert and partner in the Harrisburg law firm Nauman, Smith, Shissler & Hall, LLP.

"As a general rule, all records, including information maintained electronically, are presumed to be public records," Mr. Beneventano said today. "That includes email messages created, received or retained as of January 1, 2009, which means government entities should start with the understanding that the email is part of an official public record if it is sent or received in the ordinary course of the government's business."

Mr. Beneventano said that public access to email communications is limited only if the email fits one of three categories of exemptions in the law. "The email is presumed to be a public record unless it fits one of thirty statutory exceptions; unless it is protected by a legal privilege -- such as attorney-client privilege; or unless it is otherwise exempt from disclosure by some other federal or state law, regulation or court order."

More here.

Fla. mayor tries to block data on e-mail sent from private account

Michael Butler, a Hallandale Beach resident and blogger, filed a public records request to find out who was on the distribution list of an e-mail Mayor Joy Cooper sent out from a personal e-mail account, South Florida Sun-Sentinel reported. Although Cooper signed the e-mail "Mayor Joy Cooper" and listed her City Hall contact information, the city attorney is arguing that the e-mail was a private matter.

City officials are trying to block an Internet blogger's request for information about an e-mail Mayor Joy Cooper sent from her personal e-mail account that discusses city issues.

A private attorney hired by the city filed a civil lawsuit in Broward Circuit Court Friday against Michael Butler, a Hallandale Beach resident who runs the ChangeHallandale.com blog. Butler wants to know who received Cooper's e-mail.

In the suit, the city asks a judge to decide if the e-mail's distribution list is a public document. No hearing date has been scheduled.

More here.

Venice cost taxpayers money in delaying settlement

Eric Ernst of the Herald Tribune is pleased with how the city of Venice, Fla., adopted new e-mail policies and increased FOI training. However, the disappointment is that the city accumulated mounds of bills by not settling the case in June. The recent settlement did not differ substantially from the previous ones offered. Taxpayers will now be footing the bill.

If the outside world takes one lesson from the Venice open records/Sunshine Law case, it should be: Fix what's wrong and get on with life.

The city and its eight defendants -- City Council members, advisory board members and a former mayor -- did fine on the fixing.

They adopted procedures to safeguard e-mails regarding public business and they beefed up training.

More here.

City of Venice admits Sunshine violations in settlement

In its settlement, the City of Venice, Fla. agreed to adopt measures that include a "mandatory annual training program for elected and appointed officials and a ban on the use by such officials of private e-mail accounts to conduct City business." The City will also pick up attorneys' fees.

On the eve of Sunshine Week celebrations across the nation, and after nine months of contentious litigation, the City of Venice voted today to accept a settlement agreement in a precedent- setting open government case. In the summer of 2008, activist Anthony Lorenzo and Citizens for Sunshine brought a lawsuit centering upon the deletion of e-mails and the alleged use by elected officials of liaisons, in-person meetings, and private e-mail accounts to circumvent Florida’s Government-in-the-Sunshine Law. Early in the litigation the trial judge took the unusual step of ordering a forensic examination of the home computers of the Mayor, Vice-Mayor and a Councilmember after plaintiffs’ attorneys presented evidence of widespread violations of the Public Records Law. The lawsuit later survived repeated attempts by the defendants to have the claims dismissed prior to trial, which had been scheduled to begin on February 23 before being postponed due to the proposed settlement.

Under the settlement agreement, the City admits to violations of both the Sunshine and the Public Records laws and accepts the imposition of broad remedial requirements to ensure the preservation of public records and uphold the constitutional requirement that public business be conducted in the Sunshine. The settlement also requires the City to pay substantial attorneys fees, as mandated by the Public Records and Sunshine Laws.

More here.

UK Justice Secretary uses Hotmail account for official business, gets hacked

IT PRO reports another example of why officials should not use non-government e-mail accounts.

UK Justice Secretary Jack Straw has been criticised by a security vendor for using a Hotmail account for government business - an account that was subsequently hacked by Nigerian scammers.

Reports said that the fraudsters sent out hundreds of emails carrying the heading ‘The Right Hon Jack Straw MP’ to constituents, government chiefs and council bosses among others.

Mr Straw's adviser could not be reached for comment at the time of publication, but according to the Telegraph, Mr Straw said there were no security issues as the email address of his Blackburn constituency, rather than his ministerial account, was targeted.

More here.

Settlement in Fla. case means taxpayers, not city officials, will likely foot legal bills

A settlement in the case against Venice, Fla., city officials, including the mayor, for using private e-mails to discuss plans for the municipal airport will result in the "city government as a whole" taking the blame, The Herald (Fla.) Tribune reported. No individuals will admit wrongdoing, and therefore they will not be responsible for legal bills. Taxpayers likely will pay the 10 months of mounting legal fees for both sides. The City Council is slated to vote on the settlement Wednesday; however, only one city council member is not involved in this case in any fashion, creating a major conflict of interest.

On the eve of a groundbreaking open government trial involving top Venice leaders, attorneys for both sides reached a tentative deal Thursday to settle the case without the officials admitting wrongdoing.

Instead, the settlement pins the blame on the city government as a whole.

The arrangement creates a potential conflict of interest and could force taxpayers to cover the legal fees for both sides, which could top $1 million.

More here.