Taking the "Private" out of private electronic communications
Somebody just filed a Public Records Request for your official AND personal email account, as well as your text messages. You are aghast at the sheer conceit of such an ask. Can they actually do that? The answer might surprise you.
Each week when Council Weekly publishes an article or political cartoons, an email is sent to the Los Angeles Neighborhood Council Board members by way of a publicly-accessible City system. That’s 99 Boards and over 1500 elected and appointed officials. Such a system is quite the time-saver.
And, every week, CW receives right back at least two correspondences demanding an “unsubscribe” from what these individuals believe is some MailChimp or Constant Contact opt-in of which they are unwilling participants.
There are two problems with such a request.
Firstly, as a public official one’s government email address is open and available to the public. As a former Los Angeles Neighborhood Council Board member, I can attest to receiving a wide variety of junk mail, informational e-blasts, donation requests, event notifications, so on and so forth, with not one voluntary opt-in to account for any of those mailings. Such is the life of a public servant — everyone, apparently, is vying for your attention.
Secondly, the vast majority of those passive-aggressive “unsubscribe” responses came not from official email addresses, but instead from private email address linked to official government addresses. This raises a concern: If the Council Weekly emails were sent to an official City email address, and the recipient responded with a private email address, then does this mean the Board member utilized a private email server for government business?
Certainly, telling off Council Weekly may not be overtly considered “government business”, but if the response is derived from information received through proper City communication channels, then one may argue, successfully or otherwise, that the recipient is acting in the capacity of a public official. We'll soon learn that, sending on the laws governing that municipality, "government records" could either mean strictly government business, or roughly any document "held" by the respective party.
Defining one’s “official email address” is as simple as visiting a Council, Board, or Committee website. Next to the public official should be an email associated with that individual. Whether the address is city-supplied, gmail, Yahoo, Proton, or even ancient AOL is immaterial — that email, by way of evidentiary association, IS their “official” email address.
Out of either convenience or concealment, at times an elected public official chooses to link their official email address to a personal address. When the time arrives for a Public Records request, how susceptible IS that personal correspondence?
You might be surprised.
“EVIDENTIARY ASSOCIATION” IS NOT A TERM, BUT “ASSOCIATIVE PROPERTY” IS
In mathematics, Associative Property stipulates that the sum of three or more numbers do not change if they are grouped in a different way. This applies to only addition and multiplication, but may also appertain to a gang of email addresses utilized over a course of time for a singular purpose. Whatever the order, the outcome is the same. Official correspondence is official correspondence, regardless of the conduit.
An example of this might be a Community Council member, let’s name him Dick, engages in a correspondence with an individual connected to an upcoming development in the neighborhood — let’s call her Jane (very creative, I concur). The dialogue is conceived using the official Board email address, but then moves to a private email that is linked to Jane’s Board email. Perhaps Jane only desires one email address accessible through her mobile device out of sheer convenience, and responds to the forwarded email using her private gmail account whilst running errands. The next day, Dick texts Jane as a follow-up to their previous dialogue, and Jane responds with a text herself. Throughout this entire exchange, a matter is being discussed that is currently or may be in the near future Council business.
Lo, a question: How many of those correspondences are subject to a Public Records request?
KINDA THE SAME ALL AROUND
Let’s take a look at several major municipalities with community/neighborhood Councils governed by such laws: Los Angeles, New York City, the District of Columbia, and Honolulu.
Los Angeles (Neighborhood Councils)
According the the California Secretary of State, the California Public Records Act (CPRA, Government Code Sections 6250-6276.48) defines a public record as, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” This pertains to emails, text messages, transcripts, physical letters and other physical correspondence.
It also, as alluded to earlier, define whether these records be official, as in via an email address specifically designated to the Board seat holder. A 2017 California Supreme Court ruling, known colloquially as the San Jose Standard, clarified that “writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account”.
So, if one is a Board member within the Los Angeles Neighborhood Council system, any writings referencing that Council’s business, regardless of means and/or device, is discoverable by way of a CPRA request.
District of Columbia (Advisory Neighborhood Commissions)
According to the Office of the Chief Technology Officer’s eMail Use Policy, under Section 5.3 Prohibited Uses: 5.3.6. “Sending email under names or addresses other than the employee's own officially designated DC government email address”.
In addition, the DC Office of Open Government (OOG) issued an advisory in 2022 regarding the District of Columbia Freedom of Information Act (D.C. FOIA) as it pertains to text messages. It read “The opinion clarifies that all texting protocols potentially generate public records that are subject to D.C. FOIA.” Furthermore, the OOG recommended to the Mayor a five point order for all City employees regarding this potential issue.
New York (Community Boards)
The Freedom of Information Law (“FOIL”), Article 6 (Sections 84-90) of the NYS Public Officers Law, provides the public right to access to records maintained by government agencies with certain exceptions.
“Record” means any information kept, held, filed, produced or reproduced by, with, or for this agency, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or disks, rules, regulations or codes”.
The line “any physical form whatsoever” should be of interest to those holding public office who regularly utilize private email accounts and text messaging as a form of public business.
Honolulu (Neighborhood Councils)
Hawaii’s Uniform Information Practices Act ((UIPA) does not specifically define what is or isn’t government communication. The UIPA requires agencies to disclose all “government records.” This term is “defined broadly to include any information maintained by an agency that is recorded in any physical form” and a “record physically in the agency’s office, however, may not be considered a “government record” where it is held or controlled by an employee personally and not in his or her capacity as an employee of the agency”
The key argument within the UIPA depends upon “whether the individual holds the recording his or her personal capacity versus his or her official capacity”. As applicable to a Freedom of Information request, the Office of Information Practices may determine any redactions and omissions necessary concerning such information relating to official public business.
THINK BEFORE YOU TYPE
In all four metropolitan areas, the personal communications of a Public Official, whether it be email or text or another form of written communication, either absolutely shall or potential could be discoverable under the public records/information acts of those respective states.
The rule of thumb, therefore, is simple: Be mindful of what, where, and to whom you write, knowing that anything you communicate can and may be used against you.