Public vs. private email debate continues

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By Steve Key

The actions of two state agencies make the line between an elected official’s public and private records a little fuzzy.

It may take an Indiana court case to bring the issue into focus.

A new member of the John­son County Public Library board wanted to be sure his library-related emails were accessible to the public even though the board member was using a private email account.

This prompted a request for an informal opinion from Public Access Counselor Joe Hoage.

In his June 15 reply to Beverly Martin, director of the library, Hoage points out that personal email correspondence from a private email address is not subject to the Access to Public Records Act.

But public emails on private accounts have different stipulations. Hoage explains:

“If the board member or agency is going to broadly publicize the board member’s personal email address via the agency’s website, business cards, or in some other fashion, so that the public is made aware that should they have issues related to the agency, they should contact the board member at his personal email address, it is likely that the email correspondence sent and received from the board member’s personal email address related to agency issues would become a public record.”

His view is consistent with positions taken in court cases in Texas and Illinois. An Indiana judge has yet to rule on this concept.

Meanwhile, the Indiana Commission on Public Records is drafting a policy on the retention of email for governmental entities that would take Hoage’s informal opinion even further.

Within the policy, the following statement is made:

“Email conducted on government devices, or through a government email address, or for official government purposes, is a public record. However, accessing a personal email account via the Internet on a government device is not considered establishing the personal email or the personal account as a public record if not conducting official government business.”

This policy would make any government-related email on an elected official’s personal account a public record, regardless of whether the official promoted that email as a conduit for constituents to use to reach him or her.

Jim Corridan, director and state archivist for the commission, says the language is rooted in the Access to Public Records Act’s definition of a public record – in particular the language that includes records “maintained or filed by or with a public agency.”

The commission would argue that when an elected official receives a constituent’s email on his private account or hits the send button of an email concerning public business, the record has been effectively filed with the government unit.

While I appreciate the argument made, I know there are state legislators who would blanch at the idea that the emails they are generating on their private accounts could be public records.

They would not stomach a proposition that would open up personal accounts to public records requests.

Confirmation of the pub­lic access counselor’s or Com­mis­sion on Public Records’ views will take a judicial ruling, but public officials and employees should note the possibility that emails sent from or received by private email accounts could be public records.

The simplest solution is to not use private email for public business.

Steve Key is executive director and general counsel for HSPA.

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