E-mail, tweets, text messages, Facebook messages... just what the hell constitutes a public record these days?
Some news organizations would argue that everything is a public record. Let's look at a few scenarios and see what you think.
A county commissioner gets e-mail from constituents on a controversial issue and says the public is against it. The mayor's office demands to see the e-mails. Since the commissioner has a county e-mail address, it is pretty straightforward and the e-mails are turned over.
But what if the commissioner got the e-mails at home on a personal DSL line with a Hotmail or Yahoo address? Still a public record?
Should private e-mail from a constituent to a public official even be a public record? Do you not have an expectation of privacy in communicating with your elected officials? If it is easier to send an e-mail than to catch someone on the phone, or you want to make a coherent written argument, are you being punished for the method of communication you use?
Say the commissioner is also on Facebook, and you have been friended. You send the commissioner a private Facebook message. Suppose a whistleblower at the county sends a message about wrongdoing? Is a Facebook account a public record? How can you have a public record when no one knows whether it exists?
A mayor has his own laptop as does his chief deputy. They have Hotmail e-mail accounts. They are careful not to use the city or county e-mail system, but have Sprint cards. Are the e-mails between them about political matters public records? If the staffer sends a memo making suggestions on controversial issues and possible scenarios, are these e-mails that the public has a right to read?
There is a fellow who likes to send jokes, cartoons, and news clips around town to a hundred of his closest friends. One of the friends has a public e-mail address, either the city or the county. Since that one e-mail is sent to a public e-mail system, are all the other private e-mail addresses on his group send, from his address book, now a public record?
You are a business person or, more likely, an attorney, and you are working on a confidential project. You send e-mails to department heads soliciting information for you client. Are these e-mails a public record?
Is there a requirement that a city or county keep e-mails? What if you purge all e-mails in the system after 90 days? Have you violated the public records law?
A county commissioner is hauled into court for a Sunshine Law violation and his phone records are requested. He has a cheap phone on which it is impossible to retrieve the information. But another commissioner has an expensive phone and must produce the records. Is the lesson here that to avoid public disclosure you are rewarded for having a cheap phone?
A commissioner sends a text message to a fellow commissioner. Is the text message a public record? What about a tweet? Is a public entity required to save text messages?
You are a public person and you feel strongly about an issue, but because of your job you are unable to take a public stand. Are your private e-mails to your legislator, perhaps with a supporting document attached, a public record?
Here's a scenario for you: A little snot who works for the mayor steals e-mails between a journalist and the chair of the local Republican Party. The theft is discovered. Since the mayor is in possession of the stolen e-mails he turns them over to the newspaper. The newspaper then publishes the e-mails between the journalist and the chairman sent on private computers, using private e-mail addresses. The rationale for invading the privacy of the innocent parties is that the stolen e-mails are now "news."
This debate will continue. Perhaps some legislators and press organizations ought to sit down and work out some ground rules. An update on what constitutes a public record would seem to be in order. There needs to be a public debate on some of these issues.
It'll save time and attorney fees in the long run.