Scott Tibbs has a post over at Hoosier Access about public records that got me thinking. The question is whether all e-mail by government officials about government business should be subject to the open records laws even when conducted on private e-mail accounts. (And I also read Tibbs to argue that we should avoid the distinction altogether by simply having public officials conduct all public business on their public accounts).
What got me thinking is that this has parallels to the copyright question I wrote about (pdf) a long, long time ago. In that case, I was (following the lead of John Perry Barlow) asking what we are really protecting, the wine or the bottles? Copyright law uses limitations on duplicating the physical object as a proxy for protecting the work itself — the content contained in the physical object. That worked well enough for analog technology where physical limitations made copying difficult. In the digital age, things are different. Digital content flows more like liquid instead of the solid of the analog world.
So too, I think, with this question about public records and e-mail accounts. Public records laws try to grapple with electronic media, but the whole structure is set up around the concept of physical documents located on-site at a government facility. And it brings into focus whether our interest is primarily to let the public look at the government’s stuff or primarily to look at the communications between government officials and the rest of the world. If it’s the latter, how far does it go? Make officials speak on open phone lines — maybe a live government phone channel feed on the Internet? Sounds a little ridiculous; but, what lines are we drawing and why?
And, by the way, I’m not necessarily disagreeing with Mr. Tibbs in any real way at this point. Just noodling with the concept here.
Scott Tibbs says
Thanks for the shout out. :-)
If you recall, this is what got Sarah Palin in trouble back in 2008, when it was discovered she was using a Yahoo account for official business.
Also, public email accounts (and anything on a public computer, unless it’s specifically protected by law) is public record. Not just elected officials, but public sector employees can have their email accounts subjected to a public records request.
It’s simply an extension of paper records being public.
Recording phone conversations doesn’t follow. We weren’t recording phone conversations in 1950 or face-to-face conversations in 1850. No reason to do so now.
I agree that e-mails on public computers are public records.
What I’m more trying to get at is to consider whether laws based on the old technology are really capturing what we want to capture. It’s kind of like a letter; kind of like a phone call.
What we really want to know, I think, is what information is flowing into and out of public offices. The document itself is a vehicle for that. But, for whatever reason — technological limitations / intrusiveness / a feeling that lawmakers should have some reason to maneuver — we didn’t, as you point out, extend these sunshine laws to telephone calls & one-on-one communications. Where does the e-mail fall in that spectrum and why?
How about letters from public officials to others? If it was sent to-and-from a public office on official letterhead with stamps the public paid for and went into the agency file, then it’s a public document. If the letter went out of the official’s house on private letterhead, even if some of the content had to do with public business, we wouldn’t regard that document as being subject to a public records request.
I guess I’m just rambling on with questions. I don’t have a ton of answers or strongly held opinions at this point.
Scott Tibbs says
I don’t see the dilemma.
E-mail stored on publicly-owned servers is an extension of paper records.
On Paul’s primary point, IMO all communications among government people and entities should be public by default. This includes paper, emails, texts, phone conversations, meetings, you name it. I would back this off in cases such as sensitive criminal matters (investigations, crime victim info), and employer-employee relations.
I realize how impractical this is. However, leaving the decision of what to make public up to government, results in too little transparency. Example – the state claims that negotiations surrounding the granting of tax breaks should be kept private. Hogwash. All tax breaks are by definition, scams that benefit the powerful and well-connected putzes that run everything.
Scott Tibbs says
Who is Paul?
Do understand the concern particularly if there is intent to avoid the open records law, but it is not always as simple as some would think. Example, live in a small town in a small county–government office holders and those persons in executive positions do not have government email accounts. The “offices” do and those should be treated as public records with the understanding they may receive 100s of emails a day (official and trash/spam) so the storage will have to be very large. Thus it can be a bit more complicated than any simple statement that all records must be kept and accessible. The world of communications is very far removed from just a few years ago when the norm would have been things on a piece of paper. Also, today people feel free to contact an official through variety of means–letter, phone, email, twitter, facebook, etc. and often directly to their personal account–now separate out and seek to establish a working rule to handle in order to meet the law.