A lawsuit has placed the District of Columbia among a growing number of state and local governments wrestling with requests for public access to e-mails sent to or from officials' personal accounts.
The lawsuit (PDF), filed yesterday in District of Columbia Superior Court, challenged the D.C. Council's denial of a freedom of information act request for e-mails sent to or from councilmembers' personal accounts related to public business. The plaintiff, the D.C. Open Government Coalition, alleged that the council is in violation of the city's own FOIA law.
Kenneth Bunting, executive director of the National Freedom of Information Coalition, said similar disputes are playing out in courts and legislative bodies across the country. To date, he said, the bulk of case law and policies have favored basing public access on content, and not ownership of an e-mail account or other technology. "If it's public business, it's public business," he said.
Most recently, Bunting noted that the Supreme Court of the State of Alaska ruled on October 13 in favor of public access to private e-mails that dealt with state business. That case stemmed from the fight over access to e-mails sent to or from former Alaska governor and vice presidential nominee Sarah Palin.
Laura Handman, a partner at Washington's Davis Wright & Tremaine, said that given the blurring of boundaries between work and personal life, especially for elected officials, a number of state and local governments have recognized that public records should be determined "by subject matter and what you're doing and not from where you're doing it."
In the complaint filed in the District, which was first reported by The Washington Post, the coalition alleged that the council unlawfully denied its March request for e-mails from the past 60 days related to public business that were sent to or from councilmembers' non-governmental accounts.
Noting that a January opinion from the council's Office of General Counsel stated that at least one unidentified council member had used a private e-mail account, the group alleged a single violation of the city's FOIA law. "The Council’s position that records of some public business may be hidden from view by Councilmembers is contrary to the legal requirements of FOIA, and also raises serious public policy concerns," the group argued in its complaint.
The council, in the January opinion from the general counsel's office, maintained that it wasn't required to produce the e-mails because they weren’t in the possession or under the control of the council at the time. The open government group countered in its complaint that the records were in the council's "constructive control or possession because they are within the control or possession of Councilmembers."
James McLaughlin, co-chair of the D.C. open government group’s legal and enforcement committee and associate counsel at The Washington Post, pointed to at least seven states – New York, Pennsylvania, Ohio, Florida, Illinois, Wisconsin and Alaska – where courts or attorneys general had found in favor of public access under similar circumstances. He was aware of only one state, Indiana, where a court had ruled otherwise.
"The clear trend overall has been in favor of the position that we're advancing: That it’s the substance of the record that counts and not how it was created," he said in a phone interview today.
The open government group is represented by Chad Bowman of Levine Sullivan Koch & Schulz in Washington. A spokesman for the D.C. attorney general's office, Ted Gest, declined to comment.
The case is before Superior Court Judge Laura Cordero. An initial scheduling conference is scheduled for January 18.
This is a great cause to be fighting for. Frequently personal email accounts are used by government officials in order to hide wrongdoing. Particularly so with whistleblower issues and partisan politics.
In a case which began in 2007, a rare glimpse was seen years later when one of the co-conspirators released emails of how political appointees along with federal management all used personal Verizon or Cox.com accounts, set up specifically to discuss how to manage whistleblowers. The emails went so far as to confirm a whistleblowers name and how they all had to be careful since the laws should protect the whistleblower.
However, seeing it all in black and white had zero impact on the admin process of an AJ who did similar things via ex parte. In fact she completely ignored the fact that this was irrefutable proof of whistleblower retaliation, never acknowledging paid public service employees were using personal email accounts for official business. Judicial misconduct at its finest.
I wholly agree that if you are doing the peoples business, you may not shield yourself with privacy protections that in effect are thinly veiled methods to hide wrongdoing.
Keep up this important work!
EBrown, CEO, Whistlewatch.org
Posted by: Evelynn Brown, J.D., LL.M | October 17, 2012 at 05:26 PM