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Issue over Public vs Private Communications a Nationwide Problem

by Hannah Leone, published

private communication PiotrMaciejewski /

San Jose officials voted unanimously to appeal a judge's landmark ruling that city officials' communications about official business are public records even if sent and received by private text, email, or other electronic networks, according to an article by the San Jose Mercury News.

In the March 18 ruling, Superior Court of California Judge James Kleinburg ruled that because nothing excludes individual officials from the definition of “public agency,” communications between officials are public record, no matter if the communications are through professional or private text message, email, voicemail, or other means.

“A ‘body politic’ such as a city can only act through its officers and employees,” Kleinburg wrote in his decision.

Individual city officers are not included in the PRA’s definition of “public agency,” defendants argued. They added that even if a record falls within the Public Record Act’s definition of “writing” and is related to public business, it is not public record under the PRA when the record is not in the agency’s possession, as this would not constitute a record that is “prepared, owned, used or retained” by the agency.

Allowing private or personal communications to be exempt from the PRA enables public officials to work around sunshine laws, essentially offering them a loophole if they wish to communicate off-the-record.

Ken Bunting, executive director of the National Freedom of Information Coalition, feels that if a communication is about government business, it should be public record, even if it is produced on a private account.

"The people's business is the people's business," Bunting said in an interview, "and what we are seeing around the country is an awful tendency of public officials using private accounts to hide information from the public."

However, searching private communications is not easy. Messages can be deleted or hidden, or they are difficult to search when people don't know exactly what they are looking for.

In 2008, a New York judge ruled that wire records of former governor and attorney general Eliot Spitzer be made public record in light of a prostitution scandal that forced Spitzer to resign. Many of those communications have yet to be found, Bunting said.

This is one reason Bunting believes private emails should not be used for official communication, although that is nearly impossible to regulate. Some attorneys even encourage their clients to use private communication for the express purpose of evading public disclosure, he said.

Here is a glance at public records policy regarding private communications of public officials in two sunshine states:

Colorado - Colorado Open Records Act

  • "Public records" includes the correspondence of elected officials, with limited exceptions
  • "Correspondence" means a communication that is sent to or received by one or more specifically identified individuals and that is or can be produced in written form, including, without limitation:
  • Communications sent via U.S. mail
  • Communications sent via private courier
  • Communications sent via electronic mail
  • "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network.

In an August 2012 document titled "Legislative Policies Related to Public Records and Email," Colorado makes it clear that private or personal communication methods are not a loophole to public records:

“Pursuant to CORA, e-mail that is written in the conduct of public business by members or legislative staff could be considered a public record. This is true, regardless of whether the e-mail was sent or received on a public or privately owned personal computer or whether a member or legislative staff utilize the state or a private service provider paid for at member or staff expense to send or receive the e-mail.”

Washington - Washington State Public Records Act

  • "Public record" includes any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.
  • "Writing" means handwriting, typewriting, printing, photostatting, photographing, and every other means of recording any form of communication or representation including, but not limited to, letters, words, pictures, sounds, or symbols, or combination thereof, and all papers, maps, magnetic or paper tapes, photographic films and prints, motion picture, film and video recordings, magnetic or punched cards, discs, drums, diskettes, sound recordings, and other documents including existing data compilations from which information may be obtained or translated.
  • Does not explicitly state whether private communications regarding official business can be public record
  • Washington state's Department of Financial Institutions warns its employees against using private communications to conduct official business:
  • "Any emails used in conducting agency business are subject to electronic discovery. If a DFI employee uses their personal email for conducting agency business, then their personal email must be searched if relevant to electronic discovery or public records requests."

In a May 17 conference called "Digital Dodges and the Email Sleight of Hand," part of the National Freedom of Information Coalition and Public Affairs Research Council of Louisiana 2013 FOI Summit in New Orleans, public versus private communications will be the hot topic. At the conference, panel of FOIA experts will discuss legislation, litigation, issues of accessibility, and why communications about government business should not become private just because officials use personal comuputers or private email accounts.

Ken Bunting feels it is shameful that public employees use private communication as a means to try to hide public information. However, the solution is not straightforward.

"The fact that it's coming up in state after state, it's coming up in legislative issues over and over, and that nobody has found a solution tells me it is a difficult one," he said. "But, it won't be a difficult one once public officials get out of their heads the silly notion that they can hide information from the public simply by writing communications about government business on private accounts."

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