PUBLIC FIGHTS FOR RECORDS:

Public Fights for Records in Era of Texts and E-mails

By Tom Hester, Jr.

Associated Press Sunday March 16,2008

Trenton, N.J.

In New Jersey, the governor's emails might she light on whether he inappropriately conferred with a labor leader he once dated.  In Detroit, the mayor's text messages revealed a sexually charged scandal.  In California, a fight rages for access to e-mails sent by a city councilwoman about a controversial biological laboratory.

While e-mail and text messaging have become a hugely popular way to communicate throughout society, governments at all levels are often unwilling to let the public see the e-mails of their elected officials.

Officially, e-mails in all but a handful of states are treated like paper documents and subject to Freedom of Information requests.  But most of these states have rules allowing them to choose which e-mails to turn over, and most decide on their own when e-mail records are deleted.

"There seems to be an attitude throughout government--at all levels--that somehow electronic communications are of its own kind and not subject ot he laws in the way that print communications are," said Patrice McDermott, director of the OpenTheGovernment.org.

"So we keep hearing reports of governors and mayors who decree that their e-mail records can be destroyed, in six weeks or six months, with no appraisal for permanent value and no review by an independent body," she said.

Open records advocates contend by keeping electronic communications private, states are giving their elected officials an avenue to operate in secret--they use taxpayer-funded computers to send and receive e-mail but with little or no obligation to make such communications public.

An Associated Press survey--conducted in conjunction with Sunshine Week, a nation-wide effort to draw attention to the public's right to know--found e-mails for governors in at least seven states are officially exempt from disclosure under the Freedom of Information Act.  Those states are Arkansas, California, Louisiana, Massachusetts, Michigan, Rhode Island, and South Dakota.

But even in the other states, access to e-mail is limited, at best.  Public records guardians decide which e-mails they'll turn over and which ones they won't.

"Now that e-mail has replaced faxes and standard mail as the preferred mode of communication, it is important that these e-mails fall under open public records acts," said Heather Taylor of the Citizens' Campaign, a New Jersey-based group fighting for open government.

Public access to elected officials' e-mail is largely an untested area of open records law, even as government e-mail use proliferates.

"This is becoming a pretty hot issue," said Karl Olson, a San Francisco attorney representing a newspaper in a fight to get e-mails from a city council member. 

State laws vary on how long e-mails must be retained, and some states charge exorbitant fees for providing copies of e-mail.  There's also debate whether e-mail sent by a public official from private accounts should be subject to Freedom of Information requests.

The issue of e-mail retention is acute in Texas, where the governor's office deletes e-mails regularly -- on a weekly basis for e-mails not deemed to be of public importance.

As in most states, the Texas governor's e-mails are considered open records unless they fall into exemptions, such a legal negotiations or state security.  otherwise, e-mails from a state agency can be requested and must be provided.

The Texas retention policy prompted a fight with a Wisconsin man who in November began asking Gov. Rick Perry's office for several days worth of government e-mails.  The man, computer consultant John Washburn, launched twice-weekly computer-generated requests to Perry's office.

Perry's office initially hesitated but then agree, providing Washburn paid for what it said was staff time spent sorting through which ones could be released.  The bill for the first four days of messages come to $568.

Scripps Howard News Service and Ohio University conducted a survey in conjunction with Sunshine Week, a nationwide effort by media organizations to draw attention to the public's right to know.  The survey found:

Government:  There was a significant increase in the percentage of Americans who believe the federal government is very or somewhat secretive, from 62 percent of those surveyed in 2006 to 74 percent in 2008.

Access:  A majority of people want access to information such as whom lawmakers meet with each day (82 percent), police reports about specific crimes in local neighborhoods (71 percent), and permits for concealed handguns (66 percent).

Monitored:  Although only about a quarter of adults believe the federal government has opened their mail or monitored their telephone conversations without a federal warrant, three-quarters believe it has happened to people in the United States.

The survey was conducted by telephone from Feb. 10=28.  The pool has a margin of error of plus or minus 4 percentage points.