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Government Uses Commercial Email and Texting to Avoid FOIA Laws

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All public officials favor open government in principle. Who would
dare say otherwise? In reality, however, they are in a perpetual
search, guided by clever lawyers, for new ways to circumvent disclosure
requirements--at best, because they view requests for records as a
nuisance, and at worst, because they have something to hide (which can
range from the merely embarrassing to the indictable).

The latest device for openness avoidance is the use of personal
email accounts (and, increasingly, text messaging too) for government
communications. 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.

What do your elected representatives do when they believe that their
messages about government business are secret? In San Jose, city
council members, like proverbial puppets on a string, take instructions
during council meetings on how to vote, according to a San Jose Mercury
News report on text messages sent by representatives of unions and
other special interests.

The former San Bernardino County Assessor, who was arrested on drug
charges and is under grand jury investigation, used electronic
messaging on personal cell phones to direct his staff in partisan
political activities, according to a report of an independent
investigation commissioned by the county. The investigators found that
the assessor and his staff had chosen this means of communicating in
order to avoid creating public records.

You don’t have to be a legal scholar to appreciate the size of the
loophole that this practice creates. If all it takes to avoid the
obligations of the Public Records Act, California’s freedom of
information law, is to use a commercial email account for official
communications, then all such communications--except the occasional
anodyne and self-serving message actually intended for public
consumption--will shift to that private channel. The Public Records
Act, already porous with special interest loopholes, might as well be
renamed the California Official Secrets Act.

Lawyers for local government say that email and text messages sent
or received on a private account, no matter their content, are not
“public records” because they are not “. . . owned, used, or retained
by” a government agency, as the Public Records Act requires. Electronic
communications are “owned, used, or retained by” government only if
they reside on a government server, they say. Despite the superficial
plausibility of this reasoning, it is, indeed, only superficially
plausible.

A government agency doesn’t do anything except through
people--employees, elected officials, consultants, whatever--who are
the government’s agents. Without getting too deep into legalese here,
the point is that the actions of the government’s agents are imputed to
the government, and the government is responsible for those actions. An
arrest by a police officer, a mayor’s promise to a campaign
contributor, a public school teacher’s grading of a student paper--all
are actions of and by the government entity that these people
represent.

The same is true for written communications about government matters
that these people create or receive, regardless of the technology used
or the account status. The communications are “owned,” “used” and
“retained” by government because they are owned, used and retained by
persons in their capacity as agents of the government.

Here’s an analogy. Suppose the mayor of your town, at a private
meeting in her private home, signs 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.
There is no doubt that this document is a public record that belongs to
the town because it is “owned,” “used” and “retained” by the mayor as
the town’s agent. Nothing changes if the document sits, not on the
mayor’s kitchen table, but in the digital in-box of her personal email
account at msn.com. Either way, it’s indisputably a public record that
belongs to the town.

Finally, the objection is made that a search through a government
official’s commercial email account for requested public records is
overly intrusive. But any intrusiveness is due to the official’s choice
to mix his personal email messages with his emails about government
business. The remedy is not to deny citizens their access rights, but
for government to adopt email use and retention policies that mitigate,
if not eliminate, the problem.

What policies? Consider this proposal:

1) Agencies and local governments should set up one email account
with gobs of storage capacity. To keep it simple and inexpensive, a
corporate account (offering extra security) with Google or Yahoo will
suffice.

2) Agencies’ .gov email accounts, by default, should “bcc” all emails to the government database account.

3) All government employees should be instructed that, when using
their own commercial email account for government matters, they must
“bcc” their business messages to the database account (and forward
incoming business email there too). Basically, any email that is not
strictly personal should be copied to the online storage account.




These three simple steps produce a comprehensive government
database that provides the agency with a valuable archival resource;
allows for consistent application of document retention policies; and,
perhaps most important, is fully searchable using search engine
technology with which all employees are familiar. Any public records
requests for email can be quickly and simply processed through searches
of the archive. (No IT personnel are needed!)

Many elected representatives have become proficient at using
technology to thwart public access to government. Why not, instead, use
technology to enhance the transparency and accountability of
government?


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Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition, based in San Rafael, CA. http://www.cfac.org

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