6. Email

The Supreme Court of Alabama has treated emails between public employees regarding the sale of public assets as subject to the Public Records Law. Tenn. Valley Printing Co. v. Health Care Auth. of Lauderdale Cnty., 61 So. 3d 1027 (Ala. 2010).

However, the attorney general has opined that internal and external email regarding possible state department actions are not subject to disclosure.  Op. Att’y Gen. Ala. 36 (June 20, 2017). Emails that perpetuate, communicate, or formalize knowledge are subject to disclosure.  Ala. Att’y Gen. Op. 2020-034.

Emails are public records by definition.  See Cal. Gov’t Code § 7920.545; see also City of San Jose v. Superior Court, 2 Cal. 5th 608, 616, 214 Cal. Rprt. 3d 274, 389 P.3d 848 (2017) (holding emails sent to or from public employees’ private email accounts relating to official agency business are public records under the CPRA).

Emails fitting the definition of a public record are generally subject to FOIA disclosure requirements, but emails received or sent by members of the Delaware General Assembly or their staff are exempt. 29 Del. C. § 10002(o)(16).

A public body is to fulfill a request for email from its own records, if doing so can be accomplished by the public body with reasonable effort, and it must “request that its information and technology personnel or custodians provide the e-mail records to the public body.” Id. § 10003(i)(a). The public body must provide an itemized written estimate to the requester before requesting IT personnel to provide the email records and let the requester decide whether to proceed with fulfillment of the request. Id. § 10003(i)(b).

Emails are not specifically addressed in the statute. Nonetheless, they have been the target of D.C. FOIA requests in the past. See, e.g., Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 855 (D.C. 2016) (addressing a dispute over requests for emails). The D.C. Court of Appeals has noted in passing that when documents can be found “in the government email accounts maintained by the District of Columbia Office of the Chief Technology Officer,” these documents are “in the District’s possession and under its control,” and so the District would be able to turn them over if they were properly requested and not exempt under the D.C. Act. Kane v. District of Columbia, 180 A.3d 1073, 1078 (D.C. 2018).

Email is not exempt from the Act’s disclosure requirements. However, the Act does expressly provide that “[r]equests to inspect or copy electronic messages, whether in the form of e-mail, text message, or other format, should contain information about the messages that is reasonably calculated to allow the recipient of the request to locate the messages sought, including, if known, the name, title, or office of the specific person or persons whose electronic messages are sought and, to the extent possible, the specific data bases to be searched for such messages.” O.C.G.A. § 50-18-71(g).

The OIP held that under HRS Section 92, the Sunshine law does not allow board members to exchange email communications regarding Board business. Board Members’ Email Communication, OIP Op. Ltr. No. F20-05 (June 29, 2020).

Email is treated as any other public record. See ILCS 140/2(c). Any public matter contained in a government email or in government hardware is subject to inspection and copying under the FOIA. See 5 ILCS 140/2; 5 ILCS 140/1; 5 ILCS 140/7(1)(c) (“The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”)

The FOIA applies to any public record within the control of a public body; government-owned email accounts or hardware constitute public records which are presumptively open. 5 ILCS 140/2; 5 ILCS 140/1.2. That is, a public body can withhold “private matter” contained within this public record only if it can show—by clear and convincing evidence—that the private matter qualifies for any specific exemption under the FOIA. See 5 ILCS 140/1.2; 5 ILCS 140/7. For example, the public body must provide facts that demonstrate that disclosing the records would be “highly personal or objectionable to a reasonable person and [that] the subject’s right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(1)(c); see 5 ILCS 140/1.2. The FOIA makes clear that “[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.” 5 ILCS 140/7(1)(c).

Emails and text messages relating to public business are public records, even if those records are on privately owned devices. City of Champaign v. Madigan, 2013 IL App (4th) 120662, 992 N.E.2d 629, 372 Ill. Dec. 787; see also Public Access Opinion 16-006 (available at  https://perma.cc/EVQ2-TGPE). Communications pertaining to the transaction of public business are public records, even on personal accounts. Information not relating to public business on a privately owned device is not subject to disclosure. See Quinn v. Stone, 211 Ill. App. 3d 809, 570 N.E.2d 676, 156 Ill. Dec. 200 (1st Dist. 1991).

Public records include all records, documents, tape, or other information, stored or preserved in any medium. Iowa Code § 22.1(3); see United States v. Story Cty., 28 F. Supp. 3d 861, 871 (S.D. Iowa 2014) (noting there is no difference between cases that “were stored in electronic format as opposed to having been stored in hard copy format”).

In 2015, Attorney General Derrick Schmidt found that “[s]tate employees who utilize a private device and do not utilize public resources to send an email from his or her private email account (private email) are not a ‘public agency’ as defined by the Kansas Open Records Act (KORA) in K.S.A. 2014 Supp. 45-217(f). Accordingly, their private emails are not records subject to the provisions of the KORA.”  Kan. Att’y Gen. Op. 2015-10.  But in the following legislative session, Attorney General Schmidt led an effort to amend the definition of “public record” so that email correspondence pertaining to official duties would be subject to KORA.  That definition is currently found in K.S.A. 45-217(g)(1)(B).  The amendment was intended to apply KORA “to otherwise public records on the private email accounts of state employees.”  Testimony in Support of Senate Bill 361 Presented to the Senate Judiciary Committee By Kansas Attorney General Derek Schmidt (Feb. 2, 2016).

Electronic mail generated by public agency officials or employees is a public record as defined under the Kentucky Open Records Act § 61.870(2).

Emails can be public records. The definition of a public record includes documents “regardless of physical form or characteristics, including electronically stored information.” La. Rev. Stat. Ann. § 44:1.

Email is a public record. According to the Maine Attorney General, “Any record, regardless of the form in which it is maintained by an agency or official, can be a public record. As with any record, if the e-mail is ‘in the possession or custody of an agency or public official of this State or any of its political subdivisions, or is in the possession or custody of an association, the membership of which is composed exclusively of one or more of any of these entities, and has been received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business’ and is not deemed confidential or excepted from the FOAA, it constitutes a ‘public record’.”

Email is a public record subject to the requirements of the Public Records Law. Government agencies have a duty to “effectively manage and control” e-mail as part of the office's record-holding. SPR Bulletin 1-99, “Electronic Mail” (revised and reissued, May 21, 2003). This duty includes establishing a written policy for storing e-mail and retaining e-mails for the prescribed period of time based on content. Email should be printed and stored in paper form, but certain types of email may be stored electronically.

A common issue with email records relates to deletion of email. Even if a custodian claims that an email message was deleted, backup copies are often retained, and these records remain subject to disclosure regardless of the intent to delete the message. Email is considered analogous to paper documents. The Supervisor of Public Records, however, has noted that there are differences between the two. Namely, the contextual data that accompanies an email (the mailing address, date/time stamp, routing instructions, transmission and receipt information) is considered an integral part of the record and must be retained in any printed or stored version. SPR Bulletin 1-99 (2003).

“Email systems in use in government offices are government property installed and maintained for the conduct of government business”; agencies “may and should” exercise control over it and have the right to monitor and read employee email.  SPR Bulletin 1-99, at ¶ 7.

At least one unpublished decision has directly confirmed that “[t]he FOIA definition of ‘writing’ is broad enough to include electronic recording of meaningful content, including email.” Edwards v. Oakland Twp., No. 320133, 2015 WL 1277009 , at *30 (Mich. Ct. App. Mar. 19, 2015) (unpublished). No published decision has ever held otherwise, and in fact, several have evaluated requests for the production of emails by assuming they are “writings” and moving on to examine the applicability of other defenses. See, e.g., Howell Educ. Ass’n v. Howell Bd. of Educ., 287 Mich. App. 228, 238, 789 N.W.2d 495 (2010) (noting that “E-mail has in essence replaced mailboxes and paper memos in government offices,” and focusing instead on whether the emails at issue were public or private records). Nevertheless, the courts have also implored the legislature to clarify the application of FOIA to emails, complaining that the issues related to email “could not have been foreseen” when FOIA was last updated, id. at 234, resulting in a “situation akin to that of a court being asked to apply the laws governing transportation adopted in a horse and buggy world to the world of automobiles and air transportation.” Id. at 235. The Howell decision was that personal emails are not public records, however, merely because the emails are retained by the public body computer system, “at least . . . [when the agency’s acceptable use policy] does not expressly provide that e-mails are subject to FOIA.” Id. at 231.

See I(C)(5).

Electronic mail is available under the broad definition of public record contained in NMSA 1978 Section 14-2-6(G) (2013), which includes “all documents… recordings and other materials, regardless of their physical form.” See generally American Civil Liberties Union of N.M. v. Duran, 2016-NMCA-063 (”Email correspondence by state employees constitute a public record as defined in the statute.”); Brenner v. Bd. of Cty. Comm’rs, No. 18-478 KG/KBM, 2019 WL 1060812 (D.N.M. 2019); Dunn v. New Mexico Dep't of Game & Fish, 2020-NMCA-026, 464 P.3d 129 (The e-mail addresses of approximately 300,000 applicants for hunting licenses during a two-year period were ruled to be public record).

Electronic mail connected with the transaction of official business, the expenditure of public funds or the administration of public property and created by or received by a state public body or a public body of a political subdivision constitutes a record and is subject to the Oklahoma Open Records Act regardless of whether they are created, received, transmitted, or maintained by government officials on publicly or privately owned equipment and communication devices, unless some provision of law makes them confidential. 2001 OK AG 46; 2009 OK AG 12.

Under 65 Pa. Stat. Ann. § 67.102, “record” is defined as “information stored or maintained electronically.”

“Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record . . . and to respond as promptly as possible under the circumstances existing at the time of the request.” 65 Pa. Stat. Ann. § 67.901; In re Silberstein, 11 A.3d 629, 633 (Pa. Commw. Ct. 2011) (the open records officer is required to direct relevant requests to appropriate public officials and determine whether that official is in possession, custody or control of a “public record”).

So long as an e-mail satisfies the Law’s requirements, the Law requires access.  See, e.g., In re Silberstein, 11 A.3d 629. Silberstein suggests that a public official who “possesses, controls or has custody” of a public record, no matter where it exists, must disclose that information to a requester.  Id.  However, emails located on an agency-owned computer are not presumptively records of the agency simply by virtue of their location.” Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259, 1264 (Pa. Cmmw. 2012).  Rather, it is those emails that document the agency's transactions or activities that are “records.” Id.  Therefore, personal emails sent or received using a school district e-mail address or by virtue of their location on a district-owned computer – even though the district had a policy limiting use of computers to official business and stating users had no expectation of privacy – may be exempt from disclosure. See Baxter, 35 A.3d 1259; see also In re Silberstein, 11 A.3d 629 (a public official’s electronic communications do not fall within the definition of a “record” under Pennsylvania’s Right to Know Law when the official has no authority to act on behalf of a governmental agency without its authorization).

Email is subject to the same "public information" and exception analysis that all material requested under the Public Information Act must go through to determine whether it is subject to disclosure. See Op. Tex. Att'y Gen. No. GA-4274 (2003); Op. Tex. Att’y Gen. OR 2017-07695 (2017). If collected, assembled, or maintained in connection with the transaction of official business, the records will be subject to disclosure. See Op. Tex. Att'y Gen. No. GA-4274 (2003).

In the letter ruling, the Attorney General reasoned that Section 552.021 provides for public access to "public information." See id. Section 552.002 defines public information as "information that is collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body and the governmental body owns the information or has a right of access to it." § 552.002(a). Thus, information that is collected, assembled, or maintained by a third party may be subject to disclosure under chapter 552 if a governmental body owns or has a right of access to the information. See Tex. Att'y Gen. ORD-462 (1987); see also Tex. Att'y Gen. ORD-499 (1988) (stating that generally records held by a private attorney related to legal services performed by the attorney at the request of a municipality are subject to the Open Records Act and disclosure depends on whether the records fall within any of the Act's specific exceptions). Information is generally "public information" within the Act when it relates to the official business of a governmental body or is used by a public official or employee in the performance of official duties even though it may be in the possession of one person. See Tex. Att'y Gen. ORD-635 (1995). Although not an exhaustive list, the Attorney General stated that the following factors were relevant in determining whether documents are essentially personal in nature or whether they contain information that is collected, assembled, or maintained by or for a governmental body: who prepared the document; the nature of its contents; its purpose or use; who possessed it; who had access to it; whether the employer required its preparation; and whether its existence was necessary to or in furtherance of the employer's business. Op. Tex. Att'y Gen. No. JC-3828 (2001) (citing In re Grand Jury Proceedings, 55 F.3d 1012, 1014 (5th Cir. 1995)).

Under Section 552.137(a)-(b), an e-mail address of a member of the public that is provided for the purpose of communicating electronically with a governmental body is confidential and not subject to disclosure unless the member of the public affirmatively consents to its release.

The exemption under Section 552.137(c) does not apply to an e-mail address (1) provided to a governmental body by a person who has a contractual relationship with the governmental body or by the contractor's agent; (2) provided to a governmental body by a vendor who seeks to contract with the governmental body or by the vendor's agent; (3) contained in a response to a request for bids or proposals, contained in a response to similar invitations soliciting offers or information relating to a potential contract, or provided to a governmental body in the course of negotiating the terms of a contract or potential contract; or (4) provided to a governmental body on a letterhead, coversheet, printed document, or other document made available to the public.

Under Section 552.137(d), a governmental body is not prevented from disclosing an e-mail address for any reason to another governmental body or to a federal agency.

E-mail sent from a personal e-mail account utilizing a government computer may also be subject to public disclosure. See Op. Tex. Att'y Gen. No. GA-4274 (2003). To be subject to the Act the information must be “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business” by or for the district. Tex. Gov’t Code § 552.021. See Tex. Att’y Gen. Op. ORD-4120 (2011). In Tex. Att’y Gen. ORD-3624 (2011) it was found that e-mail inadvertently forwarded from a personal computer to the city's computer system was not covered by the Act because they were not created or sent “in the performance of [the employees'] official job duties.” See also Tex. Att’y Gen. ORD-635 (1995) (e-mail not subject to public disclosure where they constituted personal information unrelated to official business and were created or maintained by a state employee involving de minimis use of state resources).

E-mails about public matters sent from private accounts or home computers may be subject to disclosure.  Tex. Att’y Gen. ORD-1790 (2001) (council member solicited citizens to communicate with her as a council member on her personal computer by including her home e-mail address on her business card); see also Tex. Gov’t Code § 552.004(b).

Information created for campaign and personal political purposes in a public officeholder’s personal e-mail account that is not in the city’s possession is not “public information” subject to the Act. Tex. Att’y Gen. ORD-1126 (2005).

A public record includes “any written or recorded information, regardless of physical form or characteristics, which is produced or acquired in the course of public agency business.”  1 V.S.A. § 317(b) (emphasis added).  Thus, emails would fall under the statute’s definition of a “public record.”  The Vermont Supreme Court recently clarified that even emails “located in private accounts of state employees or officials” are public records if they were “produced or acquired in the course of agency business.”  Toensing v. Attorney Gen. of Vt., 2017 VT 99, ¶ 12, 178 A.3d 1000 (Vt. 2017).

Electronic records are covered by the Act.

Emails held by public agencies are public records.

The Supreme Court ruled 5-2 that “purely personal e-mail” sent or received by public employees on government computers is not subject to disclosure under the Open Records law. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, 327 Wis. 2d 572, 786 N.W.2d 177. E-mail “must have a connection to a government function” to be subject to disclosure. Id., ¶ 23. Personal e‑mail that is “used as evidence in a disciplinary investigation or to investigate the misuse of government resources” is presumed public, as is e-mail that relates to government duties. Id., ¶ 141.

The lead opinion in Schill, joined by three justices, would hold that purely personal e-mail is not within the definition of “record” under Wis. Stat. § 19.32(2). Id., ¶ 23. Two concurring justices, id., ¶¶ 153, 173, and two dissenting justices, ¶ 211, concluded the definition of “record” includes purely personal e-mail. Requesters are entitled to emails in electronic form. Lueders v. Krug, 2019 WI App 36, 388 Wis. 2d 147, 931 N.W. 2d 898.