National Pulse

Public officials can't evade public records laws through personal email accounts

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Although Hillary Clinton was the focus of the email-related brouhaha last year, similar controversies have been playing out in local governments across the country as other public employees use private email accounts to circumvent “sunshine laws” that mandate open meetings.

This questionable use of email to discuss government business comes as freedom of information advocates stress the continued need for transparency and accountability in government, as well as vigilant application of open records and open meetings laws. As federal appeals court Judge Damon Keith famously wrote in 2002: “Democracies die behind closed doors.”

The need for transparency is thwarted, open records advocates say, when government officials conduct public business on private emails and then claim public records laws don’t apply to such communications.

However, in recent months, an Illinois attorney general opinion and a federal appeals court opinion from the District of Columbia have declared that government officials cannot evade the requirements and broad purposes of freedom of information laws simply by claiming anything on private email accounts or servers is exempt from the reach of public records laws.

Illinois Attorney General Lisa Madigan, in an opinion issued in August 2016, addressed whether the Chicago Police Department responded properly to a request from CNN that concerned emails related to the shooting death of Laquan McDonald. The 17-year-old African-American youth was shot 16 times by a white Chicago police officer in October 2014.

In January 2016, a CNN reporter submitted a request under Illinois’ Freedom of Information Act that sought “all emails related to Laquan McDonald from police department email accounts and personal email accounts where business was discussed.” The department responded in July that some emails mentioned the name “Laquan McDonald” but refused to provide communications from personal email accounts of police officers. The police department asserted that personal emails were not public records within the meaning of the Illinois FOIA.

Madigan disagreed with the department in her August opinion. The attorney general reasoned that allowing government officials to avoid public records laws through the use of private emails “would be contrary to the General Assembly’s intent of ensuring public access to full and complete information regarding the affairs of government.”

The city has appealed the AG’s ruling to the Chancery Division of the Circuit Court of Cook County, where the case is in its early stages, says CNN counsel Drew Shenkman. “We were extremely satisfied with the AG opinion,” he says. “We agree with all the findings and believe that when public officials used private emails to conduct public business, those are public records. We hope that we will be able to eventually get the emails we requested.”

Reasonable Opinion

Open government experts also applauded the opinion. “The Illinois AG opinion correctly focuses on the question whether the communication is intended to memorialize public business,” says Charles N. Davis, dean of the Henry W. Grady College of Journalism and Mass Communication at the University of Georgia. “If the opinion had come down the other way, it would send a clear signal to every public official on how to avoid public records laws. All they would have to do is get a Hotmail account and start discussing public business.”

And Madigan’s opinion is notable because of its reasonableness, says Lewisburg, Tennessee-based attorney Robert Allen Dalton, who has handled many public records cases. “Unfortunately, much of the development of the law of public records in recent years has been in favor of exceptions to and exemptions from statutes requiring disclosure,” Dalton says.

Jane Kirtley, a professor of media ethics and law at the University of Minnesota School of Journalism and Mass Communications, says the heart of the issue lies in the public nature of the content, regardless of the medium used. “If the communication concerns the public, it is part of the public’s business and subject to open records disclosure, subject to any valid exemption under the particular state law,” Kirtley says.

In her opinion, Madigan cited a July 2016 decision from the U.S. Court of Appeals for the District of Columbia Circuit, Competitive Enterprise Institute v. Office of Science and Technology Policy. The case concerned whether a federal agency could withhold emails found on a private email account of the director of the agency.

The federal agency argued that documents on a nongovernmental email server are “beyond the reach” of the federal FOIA. The federal appeals court disagreed. “If the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced,” wrote Judge David Sentelle for the appeals court panel. “The agency’s claim before us simply makes little sense.”

The appeals court also noted that to allow the agency to avoid FOIA by simply storing agency business on private emails would thwart the purpose of FOIA. “If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served.”

The court’s decision reversed a federal district court’s ruling that granted the federal agency’s motion to dismiss.

Possible remedies

The use of private emails by high-level government officials is not unusual to avoid open records and open meetings laws. Chicago Mayor Rahm Emanuel, for example, was the subject of scrutiny for the alleged use of a private email account, which included communications with former Secretary of State Clinton and her former campaign chair, John Podesta, according to files hacked and released by WikiLeaks.

Davis also cites the example of former Alaska Gov. Sarah Palin, who was conducting some government business from a Yahoo account. He also recounts the case that involved former city council members from Venice, Florida, who used private emails under the code names of characters from Snow White and the Seven Dwarfs to communicate with one another.

Perhaps the most notorious recent example involves Clinton, who controversially had a private email server while in office. The organization Citizens United filed a FOIA request for certain emails. “When a Cabinet-level federal official can establish a private communication server that has the overt intention of avoiding public information requests, and the FBI openly announces that there can be no prosecution because no enforceable legal consequences for that behavior exist, then the legislative branch has quite clearly lost basic regulatory control of public records,” Tennessee attorney Dalton says.

According to University of Minnesota professor Kirtley, it’s the “cyber equivalent of city councils gathering ‘informally’ in coffee shops with a quorum present to discuss official business but insisting that their gathering is not a ‘meeting’ under the open meetings laws.

“Although I try to give them the benefit of the doubt and say that some of them do not do this intentionally, the fact is that most states, and the federal government, provide training to records custodians and other government employees about official records retention and preservation and explain that it is the content of the communication—official, public business—that matters, not the means of the communication,” she says.

Davis says legislatures can help fix the problem. “If the laws were amended to say that all governmental business must be conducted on governmental email accounts, that would help,” he says. “These instances are clear examples of how it would be beneficial to amend the laws to say thou shalt not conduct government business off government emails.”

Another avenue is to create stiffer penalties for those public officials who violate public records laws, Dalton says. “The problem is that these laws are useless without an effective means of enforcement,” he says. “Experience at all levels of government—from the smallest towns to the largest federal bureaucracies—has taught us that government officials are extremely hesitant to prosecute other government officials. If laws concerning the disclosure of public records are to be effective, then the ability to initiate and prosecute enforcement of those laws must be vested in the public at large.”

This article originally appeared in the February 2017 issue of the ABA Journal with this headline: "Private Notes, Public Scrutiny: Public officials can’t evade public records laws through personal email accounts."

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