When a public official gets or sends an e-mail, is it more like a telephone conversation or a letter? Officials and journalists, armed with public records requests, are finding there are no easy answers.
Even in the handful of states where laws are clear that e-mail is a public record, the process of getting copies of government e-mails can be tough. In Colorado, which has a strong law identifying all government e-mail as public record, journalists report government attempts to charge thousands of dollars to pay an attorney to remove confidential information from e-mails as part of a public records law request.
What’s clear is that there are haphazard state laws and policies regarding e-mail. According to research by the Marion Brechner Citizen Access Project at the University of Florida, 45 of 51 laws in states and the District of Columbia don’t mention e-mail specifically in their public records laws. In 37 of those, the statutes don’t directly mention e-mail, but more general statutory language and court opinions may make it possible for the public to gain access to these records.
In another eight states, experts said laws without e-mail provisions may preclude most citizen access, the study found. If a state’s law does not deal directly with e-mail, it could harm the public’s right to know because officials often conduct official business via e-mail, may unwittingly conduct business that should be limited to public meetings or delete important e-mails without clear policies about archiving. Journalists and SPJ are finding a growing need to ask for clearer definitions and consistent policies.
And e-mail is only the beginning. There are many areas where laws need to be updated to address the advances of technology. At the Public Affairs Research Council of Louisiana, they have done a lot of thinking about this issue, and their suggestions deserve some attention because journalists are faced with these issues across the nation. The following suggestions come from the report “Louisiana’s Sunshine Laws: The Promise and Peril of New Technology” by Charlotte Bergeron, a research analyst with the council:
A former reporter and editor, Joel Campbell is an assistant professor in the Brigham Young University Department of Communications.