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Who owns government office e-mails?
2 Alabama legislators plan to introduce bill addressing complicated issue

By M.J. Ellington · (334) 262-1104

MONTGOMERY — An Arizona county manager accused of buying personal assault rifles and booking an African safari with county money declared his work computer e-mails off limits in an investigation.

The manager said his personal e-mails on his office computer on public time were private and a judge agreed, barring a newspaper’s attempt to look at the records.

In an ongoing Wisconsin case, a public-school teacher accused of using his office computer to solicit sexual contact with children refused to turn over his e-mail records.

In both instances the people accused said their e-mails, sent on public time while on office computers bought with public funds, were private information.

States across the country have questions about who owns the electronic records of people employed in publicly funded occupations and generated on public time and equipment.

Two Alabama legislators expect to introduce — but not necessarily pass — a bill on open records after the Legislature convenes its regular session Monday. Both lawmakers said questions about public access in the electronic age are without easy solutions.

But Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, said average citizens should think hard about taking information from public sources out of the public eye. The reasons, she said, are much broader than whether to give reporters access to information somebody wants to be secret for some reason.

“If you have a situation where you have a pedophile using his office computer to make contact with children, do you want that information to be private?” Dalglish asked.

The lawsuit about access to office e-mails on Morgan County government computers may bring the issue close to home, but Dalglish said Alabama is not alone in dealing with the issue.

Arizona case

More than 15 months after a Phoenix newspaper asked the court for permission to view Pinal County, Ariz., County Manager Stan Griffis’ e-mails, that case came to a head.

Now retired, Griffis pleaded guilty to charges that he purchased more than $21,000 in personal assault rifles, ammunition and related gear and paid for an African safari out of county funds. News reports said Griffis also admitted he stole almost $500,000 in state funds in a scheme that went on for years. He faces up to 51 years in prison.

Decisions about who has access to e-mails on Griffis’ office computer still rest with the Arizona Supreme Court. The Wisconsin case is pending.

Wording of law key

In all such cases, the arguments center on how state law is written.

Dalglish believes e-mails on public computers are public.

“Public servants who have nothing to hide have nothing to fear about the public seeing their e-mails,” Dalglish said.

In Alabama, Sen. Zeb Little, D-Cullman, and Rep. Blaine Galliher, R-Gadsden, said they became interested in Alabama open records law during a study before the revision of the state open meetings law.

They asked for the records study afterward.

During the open meetings study, people kept asking how to handle records, especially computer and other electronic equipment records, Galliher said. Open records laws were enacted before such forms of communication were common.

100-page draft of bill

The open records task force finished its yearlong study last fall. Little said the resulting draft of a bill is 100 pages long. He said he and Galliher will introduce the bill several weeks into the regular session after getting feedback.

Open records task force members included county and municipal government officials, the Alabama Development Office, law enforcement and public safety officials, crime victims advocates, transportation, public health and human services departments, the Alabama Press Association, the Alabama Center for Open Government and others.

Little said one open records e-mail question involved the Alabama Development Office. Officials there had concerns about public access to e-mails during the sensitive, competitive negotiations with major industries that were considering but had not yet committed to locating in Alabama.

There are other concerns as well, including whether CDs, cell phone records and messages and other electronically generated communication the public pays for are public records, Little said.

“This is a complicated issue, and we consider it a work in progress,” Little said. “Generally pubic records need to be open.”

Difficult to pass

Both lawmakers believe the bill will be difficult to pass and both say any bill that gets passed will look a lot different than the one introduced.

Alabama Department of Archives and History Director Ed Bridges served on the records task force.

“Something like this takes a lot of time and a lot of vetting to get concerns on the table,” he said.

Bridges said the task force did not talk about excluding public access to entire forms of communication, such as e-mail. Instead, the group discussed whether certain categories of information should be defined as open or closed to the public.

For example, Bridges did not want contact information on archives donors public.

Exclusion limit urged

Another task force member, Alabama Press Association attorney Dennis Bailey, said the association objected to most proposals for new exclusions.

“There were spirited discussions related to exclusions,” Bailey said. “Our position is that we have enough exclusions already.”

Bailey said the state bars public access in more than 90 exclusions scattered in the state code. The exclusions are not easy to find and Bailey said press advocates want the exclusions located together.

Galliher also wants open records laws together in state code. He said the draft legislation includes language to do that.

Galliher said not only are there 90 exclusions, but current open records references put them in 20 places in state code.

Handling e-mail records state-by-state

MONTGOMERY — In many states, laws that define public access to information do not directly mention e-mail. Laws or court rulings in many others include the implication that the public should have access to e-mail generated or received on public computers.

The following list compiled with information from the Reporters Committee for Freedom of the Press was updated in November 2006.

  • Open records access implied by state law or court decision:

    Alabama, Alaska, California, Indiana, Iowa, Louisiana, Michigan, Minnesota, Nebraska, Oklahoma, Tennessee, Vermont.

  • Exempt records

    Utah and West Virginia exempt personal e-mail notes from public view. The District of Columbia is also in this category.

  • E-mail is specified public record:

    Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Illinois, Massachusetts, Maryland, Maine, Missouri, North Carolina, New Mexico, New York, Pennsylvania (when e-mail meets definition of public record only), Rhode Island (in most instances), and Virginia.

  • E-mail treated same as other information:

    Kentucky, Montana, Oregon (if public business or on public computer), South Carolina and Washington.

  • Law does not address e-mail:

    Delaware, Idaho, Mississippi, North Dakota, Nevada, Ohio, South Dakota and Wyoming have no such laws. New Hampshire had legislation pending in November to make e-mail records public. Wisconsin law does not address e-mail but some obtained under state open records law.

  • Other:

    Hawaii requests on case-by-case basis.

    Kansas records generally open. Exclude e-mail between city commissioners not using city resources.

    Texas e-mails generally not public record. All requests analyzed. E-mail sent from personal e-mail account on government computer may be public.

    M.J. Ellington

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