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FOI Columns
Return to The FOI Center
January-February, 2001
E-mail and cookies: Electronic tests of open records
By Charles Davis
As technology continues to race ahead of the law, freedom of information advocates watch, somewhat helplessly, as the public's conceptualization of public information — and privacy — morph daily.
Two public records issues will test the public's patience in the next few years: e-mail and cookies. Both beg the question of how much is too much, and of the public's willingness (or lack thereof) to accept the argument that public records are public records, regardless of their format.
E-mail, and the capability it offers public officials to communicate away from the public eye, is rapidly becoming an important freedom of information battle. Public officials around the country are slowly awakening to the fact that e-mail, interactive chat and other teleconferencing technologies provide them with the electronic equivalent of the old smoke-filled room.
A telling example was provided last month by The (Lynchburg) News & Advance. Following a request under Virginia's public records law, The News & Advance obtained e-mails revealing an extensive private discussion by Lynchburg School Board members that took place before a controversial vote on censoring an anatomy textbook.
In the wake of the story, some public officials said that type of debate should go on where the public can hear it. Others say e-mail allows them (officials) the chance to hash out opinions without fear of scrutiny. E-mail allows them to speak their minds without fear of repercussion, they say, encouraging creativity and fueling debate without forcing the officials to make up their minds under public scrutiny.
The problem is, Virginia's FOI law defines public records rather broadly as any record, whether written on paper or saved to a computer's hard drive, that is "prepared, owned or possessed" by a public body. Meanwhile, the state's open meetings law requires any public body to notify the public and provide access to any gathering of three or more public officials.
What is a gathering? And when does e-mail equate to a three-way conversation? These questions will determine the fate of e-mail as a public record in Virginia, and across the nation.
Frosty Landon, executive director of the Virginia Coalition for Open Government and former executive editor of The Roanoke Times, said e-mail is very clearly a public record under Virginia FOI law.
"When you write an e-mail, it is a written record," Landon said. "You are using a keyboard and anticipating that someone will read it. Just because it is stored electronically on a computer doesn't make a difference."
Landon believes e-mail between two members is just as public as an e-mail sent from one to all members of a public body. He is concerned that e-mail as a public record will continue to haunt access law as public officials recoil from the sudden airing of their once-private e-mails.
"Right now, we are all clear on this issue, but I do worry," he said. "As reporters begin filing more requests seeking e-mail, we could very well see a backlash. It's just pretty rare right now, and we are sticking to our guns, because e-mail very clearly is a record."
A related issue is e-mail storage. Which public records must be archived? What is being deleted, and for what reasons?
Florida has witnessed a major dust-up on this very issue in recent weeks. A state employee asked the Florida Department of Law Enforcement to investigate the contents of his computer. Why? To counter charges by a local attorney that files on the hard drive of the official's computer were deleted the day after the attorney filed a public records request to copy the hard drives of the employee’s computer and those of several other Fish & Wildlife Commission employees.
The FDLE found no destruction of e-mail or other records from the official's hard drive, and thus no public records law violation. But the case points to the difficulties of freedom of information in the information age, where chat can replace public debate and where e-mail is a public record.
Charles Davis is executive director of the Freedom of Information Center, an assistant professor at the Missouri School of Journalism and a member of IRE’s FOI Committee.
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