Q&A: Governor’s emails


From The Associated Press:

Q: Are emails sent by the governor on his state-issued computer exempt from the Access to Public Records Act, or can we request those?

What is the rule on lawmakers and their computers? 

A: Emails are public records just like paper documents. Whether they are allowed to be kept confidential depends on the subject matter.

The burden is on the public agency to identify the statutory basis to keep any records confidential.

The General Assembly has a specific twist due to a Supreme Court decision in the 1990s.

Citing a separation of powers, the state Supreme Court said it would not enforce the state’s public access laws against the legislative branch.

That means the legislature falls under the statutes but can ignore them if lawmakers don’t mind possible public outcry.

The legislature has taken the position that constituent email is protected under the First Amendment right to petition the government and to avoid a chilling effect lawmakers will use their discretion on whether to release such email or not.

During this year’s Indiana General Assembly, the legislature said in HEA 1003 it could not be fined for violation of the Access to Public Records Act if the records in question are considered by them to be “work product.”

So what you might get from the governor or legislature depends on the subject matter of the emails sought.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.