To save or delete?
- By Ed McKenna
- Jun 04, 2001
Indiana State Rep. Jeff Thompson sparked controversy earlier this year with
the press and First Amendment advocates by proposing to limit the public's
access to government officials' e-mail.
Tacked on to a bill about confidentiality in public employee labor negotiations,
Thompson's amendment would keep citizens from seeing e-mail sent or received
by people who work for the government, as well as records of what those
workers do on the Internet. A provision would allow for public disclosure
of "reports, applications and other documents that are filed with or sent
to a public agency by electronic mail."
For Thompson, a Republican from Danville, it was a matter of protecting
the confidentiality of lawmaker/constituent communications.
For the Indianapolis Star, it was an attack on freedom of access.
A newspaper editorialist wrote: "Although well-intentioned, it would
make Indiana one of the first states to treat high-tech communications differently
from paper communications. We believe it sets a bad precedent for secrecy
The issue at stake — privacy rights vs. the public's right to know — is substantial. And Indiana's dilemma could be a harbinger for future challenges
states and localities will face as they attempt to manage e-mail and push
ahead with e-government initiatives.
The issue of whether e-mail messages are government records subject
to freedom of information laws is just showing up on the radar screens of
most jurisdictions, said Mitchell Pearlman, executive director and general
counsel at the Freedom of Information Commission in Connecticut.
Banning access to e-mail is probably not the answer. Beverly Petersen,
executive director of the First Amendment Foundation, Tallahassee, Fla.,
said, "To close access to e-mail is to create a hole in your public records
law that you could drive a truck through."
At press time, Indiana was still struggling with the bill — it had passed
the House and Senate and was awaiting signature by the governor — and Pearlman
was wrangling with a policy that Connecticut could follow regarding e-mail.
"E-mail,'' Pearlman said, "has some of the informal aspects of a telephone
call but can also be used to convey a message like, "Let's commit $300 million
to this project.'" Making matters worse, he said, people in government often
use e-mail for personal purposes.
A common misconception is that e-mail is the same as a telephone conversation
and, therefore, should be private, said Diane Carlisle, director of professional
resources for ARMA International. But that's not true, she said. "You end
up with something that could be "in writing' and have a life longer than
a conversation," Carlisle said.
Richard Varn, Iowa's chief information officer, said laws on the books
about public records raise more questions than they answer when it comes
to e-mail. (Varn co-authored a report on the topic called "The Public Record:
Information Privacy and Access," which is available at the Coalition for
Sensible Public Records Access Web site, www.cspra.org.)
Varn said if employers can read employee e-mail messages, what about
those of telecommuters? Individuals are "ending up getting more and more
personal information in their work e-mail and work e-mail at their home,"
Varn said. In a paper environment, "if you received a personal piece of
information, even if you got it at work, the government didn't take custody
of that document."
Then, Varn said, public access to e-mail must be balanced against the
need for "free and open" communications between lawmakers and their constituents.
This is the same issue that Thompson cited as the rationale for his amendment.
He gave as an example an e-mail exchange he had when he was considering
legislation on child molestation. The exchange was with a constituent whose
former spouse was a child molester. "That constituent didn't want or expect
that information to be exposed," Thompson said.
Under Iowa law, Varn said those e-mail messages would probably be confidential.
In Iowa, as in most states, such laws include a list of exceptions to the
principle of full public disclosure.
But in Indiana, there is nothing to keep such a message from the public,
said Sandy Barger, staff attorney with Indiana's Office of the Public Access
If it were a paper letter, it would "never see the light of day," Thompson
said. "Maybe that is not right in the technical sense, but it is the common
practice. The difficulty is, in the electronic world, you can't really throw
A Permanent Record
Beyond the question of what is a record lies the question of how to
preserve it. Today, there are about as many approaches to saving e-mail
and electronic documents as there are state and local governments.
"I don't see a consistent pattern out there and don't know whether we're
making progress now," Carlisle said.
Because e-mail has been prevalent for several years, it is "sort of
stunning that a lot of states haven't dealt with it" yet, said Petersen
of the First Amendment Foundation.
Recognizing years ago that saving e-mail messages was going to be an
issue, the state of Florida tried to form a policy. "We tried to get involved
with it right upfront," said Lynn Rawls, operations management consultant
to the Florida Bureau of Archives and Records Management. "We asked our
general counsel if e-mail is a public record, and that simple question...[generated]
a seven-page opinion [concluding] "some is, some isn't.'"
The report provided some guidance, identifying as "transitory messages"
those communications that are similar to telephone conversations or "verbal
communications in an office hallway," and recommended that those messages
be retained "until obsolete, superseded or [their] administrative value
Each Florida office has the option of storing the messages in electronic
format or printing and filing them, Rawls said. Although some entities,
such as Hillsborough County, Fla., provide computers for the public to view government e-mail messages.
"If you wanted to see my records, I would have to get up and let you" use
my computer, Rawls said.
The bureau itself is training Florida agencies covered by the state's
public records law on how to handle e-mail. Those agencies include anyone
that gets tax dollars, counties, municipalities and even organizations working
on behalf of a government agency.
The city of Corona, Calif., with a population of about 112,000, also
considers the subject of an e-mail message in deciding whether or not to
store it and for how long, similar to Florida and Connecticut.
On the other hand, Indiana considers all e-mail messages public records
— no matter what they're about. "Generally, if it is in a public agency
computer, it is a public record," Barger said.
But even with a policy, the issue of what to save and make public is
not cut and dried. Eunice DiBella, Connecticut's public records administrator,
said things are far from uniform in her state, despite all the work.
"It is not as organized as you might think," she said. "We all talk
about managing it, [and] I don't know if anyone really is.... The truth
of the matter is it is very hard, very difficult."
McKenna is a freelance writer based in the San Francisco Bay area.