To save or delete?

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

in government."

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

Counselor.

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

it away."

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

is lost."

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.

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