Study Suggests States’ Records Laws For E-Mail Inadequate

May 19, 2003

GAINESVILLE, Fla. — Most state governments have inadequate rules on official e-mail that may limit public access to those records, according to new research by the Marion Brechner Citizen Access Project at the University of Florida.

Researchers found 45 of 51 laws in states and the District of Columbia don’t mention e-mail specifically in their public records laws. In 37 of those, the statutes don’t directly mention e-mail, but more general statutory language and court opinions may make it possible for the public to gain access to these records. In another eight states, experts said laws without e-mail provisions may preclude most citizen access, the study found.

“This large number of laws that do not directly deal with e-mail often hurt the public’s right to know in an era when technology makes discussions between public officials easier in cyberspace than at the town hall,” said Bill Chamberlin, a communications law expert and project director.

“Without more specific laws, officials frequently conduct official business via e-mail outside public meetings or delete important e-mails without following state archiving policies,” said Chamberlin, who also is the Joseph L. Brechner Eminent Scholar in UF’s College of Journalism and Communication. Chamberlin presented the study’s results Saturday at the National Freedom of Information Coalition Conference in Nashville, Tenn.

The findings come as government leaders and courts across the nation grapple with policies and legislation to guide the increasing use of e-mail, voice mail and instant messaging.

A Virginia judge ruled in December 2002, for example, that the Fredricksburg City Council violated the state’s open law by selecting a library commission appointee via e-mail. That same month, Sherborn, Mass., selectmen agreed to place all their e-mail in a public file at City Hall after residents complained about a behind-the-scenes e-mail exchange in September. The e-mail discussion overturned a decision made in an open meeting. And in March, the Connecticut Freedom of Information Commission issued a draft ruling telling officials that e-mail and voice mail are public records that must be retained and made accessible to the public.

States having statutes that most clearly define e-mail as public records include Colorado, Montana and California, according to the project’s panel of experts. Each of these states received a “six” or “mostly -sunny” rating on the project’s seven-point “sunshine scale” of accessibility. The experts reviewed state laws

and court decisions to determine the rankings.

Colorado’s top-ranked statute, for example, requires state and local governments to adopt a written e-mail policy including a statement telling employees their online missives may be public records and subject to public inspection.

Montana’s public records law, amended in 2001, expressly defines e-mail as a public record. So long as the record is not constitutionally protected from disclosure or contains otherwise confidential information, such as library records or burial site records, e-mail may qualify as a public record.

The California law defines public records to include any writing containing information relating to the conduct of the public’s business regardless of physical form or characteristics, and since 2002 has classified e-mail as a “writing.”

Aside from the three states with specific e-mail laws, 23 states received a “five” or “sunny with clouds” rating, while 16 received a “four”, or “partly cloudy rating.” Laws in two of these states – Rhode Island and New Jersey – specifically mention limiting access to e-mail. Rhode Island lawmakers make many e-mails public except those involving communications about or with their constituents and with public officials. New Jersey has a similar exemption for constituent correspondence only.

Florida, Arizona, Ohio and Washington, researchers found judges have given mixed instructions about e-mails as public records. For example, Washington’s Court of Appeals ruled that e-mails to state, county and municipal employees containing purely personal information are not public. The Arizona Court of Appeals ruled public records, including e-mail, are presumed open for inspection unless officials can demonstrate a reason why a particular record ought not be disclosed to further another important interest, such as privacy. Florida was rated “sunny with clouds” or “five.” Ohio and Washington were rated “partly cloudy” or “four.” Arizona was rated “cloudy” or “three.”

Panelists gave eight states “nearly dark” or “two” ratings primarily because their laws make no mention of e-mail and lack other provisions that would encourage access. Those states are Massachusetts, Alabama, Nevada, New Hampshire, Pennsylvania, South Dakota, Texas and Utah.

Members of the project’s advisory board included Rebecca Daugherty, Reporters Committee for Freedom of the Press; Sandra Davidson, University of Missouri; Bob Freeman, New York State Committee on Open Government; Kevin Goldberg, Cohn and Marks; Harry Hammitt, Access Reports; Frosty Landon, National Freedom of Information Coalition; Linda Lightfoot, The (Baton Rouge, La.) Advocate; Ian Marquand, Society of Professional Journalists; Patrice McDermott, American Library Association; Anne Mullin O’Connor, Indiana Public Access Counselor; and John Watkins, University of Arkansas.

For a complete list of state rankings, visitwww.citizenaccess.org. Take the link to comparative state laws in the middle column and then go to the dropdown menu and select “e-mail (public records).”

The Citizen Access Project is funded by Orlando broadcast executive Marion Brechner. The research is conducted under Chamberlin’s supervision. The project also received funding from the Miami-based Knight Foundation.