Advocates of open government are fighting to prevent the modern convenience of email from modernizing the way politicians keep secrets.
In a battle that has reached Nebraska, they are challenging government officials who route public business through private email accounts to avoid public disclosure.
The core question in these disputes: When does a private email sent by a public official become public?
An attorney for the Omaha school board withheld emails she exchanged last summer with a newly selected superintendent, on grounds they were sent and received on her law firm’s account.
Earlier in the summer, the Beatrice Daily Sun and Gage County Board members tangled over the use of private email accounts, prompting the Nebraska Attorney General’s Office to jump into the fray.
The Alaska Supreme Court handed a partial victory this month to a woman who challenged former Alaska Gov. Sarah Palin’s use of private emails while governor.
New Mexico Gov. Susana Martinez came under fire this year for her administration’s use of private email accounts, prompting her in June to order employees to conduct business only on government email accounts.
Presidential candidate Mitt Romney and some of his staff conducted government business on private email accounts when he was Massachusetts governor. They acted legally, the Associated Press reported, but it raised questions because of the vulnerability of such communication to hackers and the inability to preserve such exchanges as government records.
Peter Scheer, executive director of the nonprofit First Amendment Coalition in California, has written about the loophole that private emails create in public records laws.
“Mayors, city council members, agency executives and school superintendents have been told that if they do government business on their gmail or Yahoo accounts — anything but their official .gov email — their communications, no matter how focused on government matters, will never see the light of day,” he wrote in 2009.
Scheer, however, contends that the content of records, not the location, primarily should determine whether they are public.
He offered the hypothetical scenario of a mayor, in a private meeting at her home, signing a written agreement with a contractor to expand the local airport.
“The agreement is a paper document in the mayor’s house, miles away from her office at city hall,” he wrote.
There is no doubt the document is a public record that belongs to the town because the mayor, acting as the town’s agent, owns, uses and retains it, he wrote.
The Nebraska Attorney General’s Office made a similar argument in the dispute between the Beatrice Daily Sun and the Gage County Board.
Daily Sun reporter Chris Dunker, seeking information about why the county medical director resigned abruptly May 25, made a request June 5 for copies of any correspondence, including emails, exchanged between the County Board members and then-medical director Don Rice in April and May.
County Attorney Roger Harris maintained that the emails board members exchanged on private accounts were not public. He said the board members did not have official county email accounts, only private accounts, although some of those email addresses were listed on the county’s website.
Dale Comer, assistant attorney general, disagreed in an opinion written in response to a request from the newspaper.
“Records need not be in the physical possession of any agency to be public records under Public Records Statutes,” Comer wrote July 2.
“If a record does belong to government, then it is a public record no matter where it is located,” he wrote.
Gage County Board members had an obligation to search their personal email accounts and deliver the pertinent ones to the newspaper, he wrote.
Harris, in an interview, said board members were not trying to hide information from the public. “It was more a matter of how could we dictate to somebody that’s using their own computer that they had to turn stuff over,” he said.
He said Comer’s opinion clarified an unclear situation.
“We have no problem complying with the statute and Mr. Comer’s opinion,” he said.
Location was also an issue in the Omaha Public Schools dispute.
Newly hired OPS Superintendent Nancy Sebring resigned June 2 after The World-Herald and Des Moines Register published stories about the sexually explicit emails she wrote to a lover, using a school district computer while superintendent in Des Moines.
On June 14, The World-Herald submitted a public records request for communication, including emails, between Sebring, OPS board members and the board’s legal counsel, Elizabeth Eynon-Kokrda, between May 7 and June 14.
OPS produced copies of more than 200 emails. The district also identified seven that district officials believed were covered by attorney-client privilege, making their contents protected from disclosure. None of the released emails revealed conversations between OPS officials and Sebring about the racy Des Moines emails.
Later, Sebring released to The World-Herald more than a dozen emails exchanged between her and the district’s lawyer during the same period covered by The World-Herald’s records request. Those emails showed that Eynon-Kokrda and school board President Freddie Gray knew more about the racy emails than they let on publicly.
The district hadn’t even acknowledged the existence of those emails, as required by state law, when the records request was made.
Eynon-Kokrda later said that was because Nebraska’s public records law requires only the disclosure of records owned by or in possession of the district.
She said the emails she exchanged with Sebring didn’t fall under the law because they were sent and received on her Baird Holm law firm account.
In one of those emails, sent May 24, she told Sebring she wasn’t sharing Sebring’s emails with board members: “I do not forward your emails because I want them arguably protected and/or not known to exist per se, but I do advise Freddie of our contacts so she is current.”
Larry King, president of Media of Nebraska, said government officials are not free to decide which laws they will comply with and which ones they won’t.
Media of Nebraska represents print and broadcast news organizations in the state in promoting open government, through legislation and legal means. King is also vice president of news and content for The World-Herald.
Governments can protect records that fit certain exclusions in the law, but the law “does not allow them to hide their existence, which the school district did in this case,” King said.
If Sebring had not revealed the existence of the emails she exchanged with Eynon-Kokrda, the public would have never known they existed, he said.
“They were in her possession, acting as the school district’s attorney,” he said of Eynon-Kokrda. “That was public business that she was conducting on behalf of the school district, in correspondence with the superintendent-in-waiting at the time. She was conducting public business. Therefore that correspondence, which we specifically asked for, was public record. The existence of them definitely is public record.”
Eynon-Kokrda and Gray did not respond to requests for comment.
John Bender, who teaches media law at the University of Nebraska-Lincoln, said it’s clear district officials “were trying to find what’s called a ‘safe harbor’ for those emails, someplace where they could go and not be subject to the open records law.”
Nebraska’s public records law does not explicitly prohibit attempts to circumvent it, he said.
By contrast, he noted, the state’s open-meetings law prohibits public officials from avoiding public scrutiny by holding a meeting out of state or in a room that’s too small.
“I think it would be a lot clearer if there was some provision that made it a violation for someone in government to take action to circumvent the law or prevent the disclosure of documents that otherwise would be public,” Bender said.
Nebraska courts haven’t weighed the question of location versus content in determining what’s public, he said.
In other states, courts have decided that a nongovernment employee who is working on behalf of a government cannot escape public records searches, he said. For instance, in 2000 an Ohio court ordered that private companies working for a county board had to make public correspondence and documents that revealed cost overruns on a stadium, he said.
In the Alaska case, the high court ruled that private emails regarding state business “are no different from any other records.” However the court ruled that using private accounts to conduct state business does not, on its face, amount to obstruction of the Alaska public records act.
Andree McLeod, who sued to recover Palin’s emails, had argued that a lower court ruling gave politicians so much discretion they could hide records to avoid political embarrassment or evidence of misconduct and malfeasance.
When New Mexico’s Martinez directed her employees to conduct business on government email, she noted there was no law in that state requiring it to be done.
Her directive was, she stated, an “important step to ensure continued confidence in government.”
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