Alaska Supreme Court rules private e-mail messages are public records

An Alaska Supreme Court decision makes private e-mail messages containing government business subject to the state Public Records Act but also makes obtaining those records difficult.

Friday's ruling held that the state Public Records Act does not prohibit public officials from conducting government business through their private e-mail accounts, potentially posing difficulties for people seeking to access those messages in the future, Alaska media lawyer D. John McKay said in an interview.

“The court declined to make using private e-mail for state business off limits, and I think that given the way the realities of technology are today it would be out of line,” McKay said. “The court is just saying, look, what’s important is not the means of communication but what’s being talked about.”

The high court largely upheld the lower court’s ruling, making Alaska the 18th state to establish statutory or case law addressing the issue of public information in private e-mail messages, according to The Reporters Committee for Freedom of the Press' Open Government Guide.

The decision came as a result of a lawsuit filed in 2008 against Sarah Palin, who was Alaska’s governor at the time. Andree McLeod had filed a public records request seeking e-mail messages from Palin’s private account if they involved state business. McLeod also filed a complaint that Palin had violated the Public Records Act by conducting state business through private e-mail correspondence.

McLeod filed the suit to establish that private e-mail messages with content involving state business should be considered public records and that using private e-mail accounts to discuss state business is a per se violation of the Public Records Act.

The trial court ruled that not every e-mail message referring to state business is considered part of the public record and that using private e-mail accounts to conduct state business does not violate the Public Records Act. The court also ruled that the state departments could determine what correspondence should be preserved as public.

McLeod argued in an appeal that the ruling was “absurd” because it granted officials the authority to decide whether or not to preserve a record for any reason.

The superior court held that “each agency has the best understanding of the preservation value of its own documents,” but concluded that “if a state employee deliberately does not preserve a document that is ‘appropriate for preservation’ . . . that employee is breaking the law.”

The Supreme Court upheld the superior court’s decision, saying that “using private email accounts is no more an obstruction of access to public records than communicating through paper letters.”

The high court affirmed the lower court's interpretation that records that should be preserved are also public records, even if they are difficult or impossible to access, but not every record and e-mail message a state employee creates is appropriate for preservation and review.

McKay said that McLeod was right in her argument that there is an “inherent difficulty” in complying with a records request that involves private e-mail messages.

“It’s harder to get information that either doesn’t exist or isn’t readily found in public files,” McKay said. “Any compliance with a public records request would involve a diligent search for any records contained, regardless of where they were maintained. It’d be easier to find something if the records were all in one place.”

Related Reporters Committee resources:

· Alaska – Open Government Guide: 4. Public matter on private e-mail