Open-records laws make e-mail a new window on public business

Thursday, March 4, 1999

The e-mail passing among members of the Williamson County, Tenn., School Board got a lot less interesting this winter.

That's because last November, the board received its first-ever request to turn over its electronic archives under the Tennessee Open Records Law. The request came from Tennessean reporter Nancy Mueller, who was investigating the mysterious reappearance of a long-defunct curriculum committee.

It turned out that the decision to reinstate the committee had been made in cyberspace, through an e-mail discussion launched by one board member.

“At some point every school board member had been privy to this discussion,” Mueller said. “They were deliberating the issue and they never did take a vote on it.”

Because that appeared to violate the state's open-meetings law, Mueller's story forced a public vote on the question.

And there was more. Mueller's stories uncovered rifts and nasty name-calling among board members, as well as one member who appeared to be arranging personal business transactions through her government-provided e-mail account.

Around the country, reporters are gaining insight into the internal machinations of state and local government through e-mail records, sometimes to the embarrassment of officials who thought of their e-mail as a privileged communication — more like a phone call than a piece of correspondence. In Hampton Roads, Va., Virginian-Pilot staff writer Alice Warchol showed how school board members there used e-mail to influence one another's votes and to share less-than-flattering opinions of some members with others.

And in Menlo Park, Calif., Brian Bothun, a reporter with the Palo Alto Daily News, made news just by requesting all of the city council e-mail generated during a nearly yearlong period. While city officials had assumed their e-mail was private, Bothun told the San Jose Mercury News that the search was akin to the long-standing routine of going through paper correspondence.

In each of these cases, the reporters faced no significant resistance to obtaining the e-mail records they had requested. But it's only a matter of time before reporters and state or local government officials wind up at loggerheads over access to e-mail, says Frosty Landon, former editor of The Roanoke Times and executive director of the Virginia Coalition for Open Government.

“There are a lot of states that haven't ever written their law to catch up with technology,” he said. “Every state has to look at its statute and ask if it treats all records the same way.”

While state open-government laws vary, they generally hew to the federal Freedom of Information Act, under which e-mail is clearly subject to public or press scrutiny on request. It has been that way since 1993, when a federal appeals court ruled in Armstrong v. Executive Office of the President that electronic documents must be preserved and managed just like paper documents under the rules set forth in the Federal Records Act.

In that case, Scott Armstrong , an activist, sought e-mail that had to do with the Iran-Contra affair during the Reagan administration. Today, each federal agency has its own information officer, and each has “a responsibility to document their activities, whether in paper or in a record-keeping system,” says Mary Ronin, freedom of information officer for the National Archives and Records Administration. The trouble is how to do it.

E-mail archiving or “scheduling” systems are inconsistent in approach and spotty in quality, says Elana Varon, a Boston-based journalist who covers government computer issues.

“The federal government has been scrambling around trying to come up with a policy. And a lot of technology vendors are getting into the marketplace with systems that will allow agencies to effectively identify what e-mail and other office automation files are records and file them electronically in an appropriate way,” she said.

But the systems have a way to go. For now, an operating standard for these systems has been developed by the Defense Department, a standard that the National Archives is using as a benchmark for systems that perform adequately.

In the meantime, the biggest controversy in electronic government records is whether agencies may consider a record as preserved if it has printed a copy of the record and deleted the electronic version. Public Citizen, a Washington-based advocacy organization for open government and a plaintiff in the Armstrong case, has been in court since the mid-1990s fighting for a ruling that would permanently bar agencies from deleting electronic files. A decision is expected from the U.S. Circuit Court for the District of Columbia in the coming months.

While the question of whether elected officials' e-mails about public business ought to be preserved as public records, subject to freedom-of-information laws, is largely settled, gray areas remain. One is the exception for “deliberative material.” Public Citizen counsel Michael Tankersley explains that this exception “provides adequate protection for public employees to conduct preliminary discussion, but it does not protect decision-making meetings or papers that explain the basis on which action is taken.”

Given the kind of hour-to-hour traffic that e-mail generates and the tendency of people to be more candid in a medium that appears ephemeral, it may prove too difficult for public officials to self-select which e-mails do or do not fall under the deliberative-material exception. Landon suggests a clearer standard.

“My view is that people in elected office ought to keep separate e-mail addresses and keep their personal e-mail in one and their public business in a separate one. And if they want to talk about legally exempt matters one-on-one, they ought to be using the phone, not creating a record,” he said. “There is clearly a way to still function efficiently if they're not trying to violate the law.”

W. Wat Hopkins, a former journalist and professor of communications law at Virginia Tech, said he once regarded e-mail as tantamount to a private phone call under Virginia's freedom-of-information law. But after looking into the issue carefully for a presentation to the Montgomery County School Board, of which he is also a member, he changed his mind.

“If you look more at the spirit of the law than the letter, it seems pretty clear to me that the law was designed to cover [electronic] communications as much as paper communications,” he said.

He concedes that since that presentation, he has used e-mail slightly differently. “I now presume that every e-mail I write will be read by someone other than the person to whom I'm sending it, and when I get passionate about certain issues, I am a little more circumspect.”

Each of the instances described in this story prompted the agencies involved to develop new guidelines for the use of e-mail, including prohibition of use of the account for personal communication or personal gain. But no one yet has an answer for how government agencies can manage the sheer volume of electronic mail they are expected to store.

According to Alexander Stille, writing in the March 8 edition of The New Yorker, the White House alone is generating 6 million e-mail messages per year. By contrast, the National Archives Electronic Records Division received only 25,000 messages for the period 1989 to 1996 from the entire government. The era of big government may be over, Stille writes, “but the era of big-government data banks is just beginning.”

— Craig Havighurst is a free-lance writer living in Nashville, Tenn.