States are reluctant to open e-mails, text messages to public scrutiny

In New Jersey, the governor’s e-mails might shed light on whether he inappropriately conferred with a labor leader he once dated. In Detroit, the mayor’s text messages revealed a scandal.

Even the White House has faced pressure from Democrats in Congress over its problem-plagued e-mail system.

While e-mail and text messaging has become a popular way to communicate, governments at all levels are often unwilling to let the public see messages sent and received by their elected officials.

Officially, e-mails in all but a handful of states are treated like paper documents and subject to Freedom of Information requests. But most of these states have rules allowing them to choose which e-mails to turn over, and most decide on their own when e-mail records are deleted.

“There seems to be an attitude throughout government – at all levels – that somehow electronic communications are of its own kind and not subject to the laws in the way that print communications are,” said Patrice McDermott, director of OpenTheGovernment.org.

Open records advocates contend by keeping electronic communications private, states are giving their elected officials an avenue to operate in secret – they use taxpayer-funded computers to send and receive e-mail but with little or no obligation to make such communications public.

An Associated Press survey – conducted in conjunction with Sunshine Week, a nationwide effort to draw attention to the public’s right to know – found e-mails for governors in at least seven states are officially exempt from disclosure under the Freedom of Information Act.

But even in the other states, access to e-mail is limited, at best. Public records guardians decide which e-mails they’ll turn over and which ones they won’t. Public access to elected officials’ e-mail is largely an untested area of open records law, even as government e-mail use proliferates.

State laws vary on how long e-mails must be retained, and some states charge exorbitant fees for providing copies of e-mail. There’s also debate whether e-mail sent by a public official from private accounts should be subject to Freedom of Information requests.

“Some authorities purge old e-mails sooner than others,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “And the Legislature, in its wisdom, exempted itself from the retention rule in place for other state officials so lawmakers can simply delete e-mails that may point to unethical or criminal conduct.”

The Detroit Free Press sought access to text messages sent between Detroit Mayor Kwame Kilpatrick and his chief of staff, Christine Beatty. Kilpatrick’s office contends the text messages are not public information because they were transmitted on a leased device, not city-owned equipment.

In California, a judge has ruled that e-mails of a Tracy, Calif. city councilor are not public because they were sent and received at her personal computer at home.

“The big question at this stage is whether or not a public official can avoid the requirements of the law by simply going home at night and using a personal computer,” said Tom Newton, general counsel for the California Newspaper Publishers Association.

That’s the issue in San Francisco, where messages to Mayor Gavin Newsom sent to and from his personal iPhone were sought by a citizen unaffiliated with the news media.

Newsom spokesman Nathan Ballard said, “We’re not going to violate the person’s privacy and hand over messages they receive on their personal cell.”

McDermott said federal policy calls for treating all e-mail the same, regardless of the level of office, and printing it out before destroying the electronic version.

“Most federal agencies do not have an electronic record-management for their electronic records,” McDermott said. “This is especially a problem for e-mail records because of the enormous volume.”


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