The "Bridgegate" scandal in New Jersey involving an investigation into the George Washington Bridge lane closures has included many instances of Governor Chris Christie's top officials utilizing their own Gmail, Yahoo, or other personal accounts to conduct official business. For public officials, governmental agencies, and those seeking information from those entities under public records laws, the digital age has complicated the definition of what is considered to be a public document.
Public records laws govern how public officials’ documents and correspondence should be stored and released. These laws can vary widely from state to state, and many were drafted before e-mail and other digital communication became commonplace. Such laws are intended to promote openness and transparency in government at all levels. Many state and federal government officials, however, have raised questions about whether e-mail messages from their personal accounts should be deemed public records.
But is this a correct application? Are the private e-mails of public officials and agencies truly public documents? Are the personal e-mails of government officials subject to state and federal public records laws? Does it matter if a private e-mail address is used? The answer can depend on the state where you live, the content of the messages, court rulings, and how the applicable public records law is written.
FOIA at the Federal Level
The federal Freedom of Information Act (FOIA) requires every executive federal agency to make available any agency record for public inspection. Records are broadly defined by statute and regulation to include all recorded information, regardless of medium or format, made or received by the agency or its agents under federal law relating to the transaction of public business, and either preserved or appropriate for preservation because of their administrative, legal, fiscal, or informational value. The federal statute does not, on its face, address the use of private e-mail accounts to conduct official business, and whether such an e-mail would be considered a public record.
State Public Records Laws
All 50 states also have public records laws that allow members of the public to obtain documents and other public records from state and local government bodies. State public records laws are not identical to FOIA, nor are state court interpretations of similar language in state statutes necessarily the same as federal court interpretation of FOIA (though many were modeled upon FOIA). Only a handful of state FOIA statutes, including New Jersey, Delaware, and Colorado, even directly address whether a public official's e-mails are considered public records. Like the federal statute, these state laws also do not specifically address the use of private e-mail accounts to conduct official business.
For example, under Delaware's FOIA law, "e-mails received or sent by members of the Delaware General Assembly or their staff" are specifically exempted from the definition of a "public record." Colorado law classifies e-mail messages sent to or received by legislators as public records but exempts communications that "a constituent would have reason to expect to remain confidential." In other states, including Florida and Alaska, a message’s content—regardless of format or physical characteristics—determines if it is a public record. For example, under Florida's Public Record Act, a "public record" means all "documents… regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." Again, the statute does not address the use of private e-mail accounts versus official e-mail accounts.
Given the lack of statutory guidance, courts and state attorneys general have been left to decide two issues concerning the private e-mail accounts of public officials. First, whether a public official's e-mails sent and received on his or her private account are public records when they relate to public business, and if so, does the public have the right to access them? Across the country, where the issue has been addressed, decisions have generally boiled down to this: content is key. What ultimately determines whether a communication is a public record is its content, not the means of transmission.
In Alaska, former Governor Sarah Palin regularly used her Yahoo e-mail account to conduct state business. Ruling on a citizen activist's lawsuit, the Alaska Supreme Court in October 2012 held that state employees cannot use private e-mail accounts to shield their work communications from public record laws. The court held that while state employees could use private e-mails, private e-mails about state business should be part of the public record. In March 2013, a Superior Court judge in San Jose, California, ruled that private devices used to conduct government business can be subject to public disclosure laws. This includes text messages from private phones, e-mails from private accounts, and other electronic communications. Even in so-called "reverse" lawsuits, courts have reinforced the content-focused inquiry concerning private e-mail accounts.
In January 2010, the Michigan Court of Appeals held that personal e-mails sent by teachers on a school district's computer system were not public records subject to disclosure under the state's FOIA because the "statute was not intended to render all personal emails public records. . . ." And in Illinois, the Attorney General issued an opinion in 2011 concluding that electronic records relating to the transaction of public business are “public records” subject to disclosure under the Illinois FOIA, even if they are generated on a public official’s personal electronic device or e-mail account.
At the federal level, a content-based inquiry has also been used. In September 2013, regarding certain officials in President Obama’s administration who were accused of using private e-mails to circumvent the federal FOIA, the National Archives said that multiple official e-mail accounts and the use of personal accounts were permissible in some situations, but that all official correspondence must be properly captured for record-keeping.
As courts begin to consider the impact of the use of private e-mails to conduct official business, the implications on the e-mails of public officials, public agencies, and those that seek those communications are significant. Based on judicial authority to date, the mere use of a private e-mail account will no longer provide complete immunity to disclosure under state and federal FOIA statutes. Similarly, the mere fact that an e-mail message is received on a government computer through a government e-mail address issued to a public official to conduct public business does not itself make the e-mail message a public record.