Gmail. Yahoo! AOL. Do these sound like official email accounts for the conduct of public business? They can be.
The NC Public Records Law applies to public agencies and public officials/employees. It makes public all documents made or received in connection with the transaction of public business unless there is a specific, statutory provision that exempts them from public disclosure. I highlight “statutory” because public officials must be able to identify by chapter and verse the statute they claim exempts a record from disclosure. It is not enough to say “It’s confidential,” or “It’s proprietary,” or “It’s sensitive, personal information.” If there isn’t a law that exempts a document from release, it must be released.
The law makes no reference to how the document is created, transmitted, or stored. A letter to a city councilman about the location of a garbage dump, for example, is equally public whether it is delivered through a .gov email address, AOL, FedEx, or carrier pigeon. Under the law, what matters is the content of the emails. If the email addresses public business and isn’t exempted by some other law, it is a public record. On the other hand, if an email says, “Honey, would you pick up a gallon of milk on your way home?” that probably isn’t a public record even, if it is sent to a .gov email address.
Practical Tip 1:
When you make a request for public records, be clear that you expect to receive all responsive records on the topic that interests you, regardless of what email account was used to send or receive them. Include a statement like this: “We request all records related to X, whether they reside on governmental or personal computers, and whether they were communicated using governmental or personal email accounts.”
Practical Tip 2:
If you get resistance, you and the public official don’t have to take my word for it that you are entitled to get “personal emails” conducting public business. Frayda Bluestein, a faculty member with the UNC School of Government, says exactly the same thing I do. “If an email is made or received in connection with the transaction of public business, it is a public record regardless of whether it is created or stored on a public or a private computer, mobile device, or email system.” http://tinyurl.com/SOG-Email-As-Public-Record
And if your public official doesn’t trust either me or Frayda, you can quote Judge Howdy Manning. In a similar situation, ruling on a public records lawsuit against UNC, Judge Manning found that Coach Davis’ personal cell phone bills were public records because they reflected the conduct of public business. Judge Manning wrote, public officials “may not use their personal cell phones to ‘dodge’ or evade the North Caroline Public Records law and may not avoid public scrutiny of their cell phone records by using their personal cell phones to conduct public business.”
The same goes for personal email accounts, personal cell phone texts or personal carrier pigeons. What matters is the communication, not how it is made. So don’t overlook your right to receive all records of public business, even those made on personal accounts.
[You can see Judge Manning’s orders in the UNC case here: http://tinyurl.com/Manning-Orders-UNC]
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