FOIA Friday: personal electronic mail as public records
With the publication of over 2,700 pages of e-mail from Ann Arbor's City Council on Nov. 5, I've had a lot of reading to do. Much of it is mundane, the ordinary work of government; sometimes what slips in are messages completely unrelated to the functioning of government, simply personal messages sent between colleagues about vacation plans.
This week's FOIA Friday covers other stories I've found related to cases where citizens and the media have been reading through electronic mail released under Freedom of Information Act requests, and focuses particularly on those instances where there are personal messages mixed in with work messages on systems maintained by government organizations.
If you haven't been following the FOIA Friday series, the introduction is a good place to start.
In each of these cases, laws vary slightly by state, and if there is no case law and no opinion by the state's Attorney General, the question may hinge on the particulars of the case and how well the opposing sides argue for and frame their case.
Is personal email sent at work a public record?
In West Virginia, personal email sent at work is not subject to FOIA, as the West Virginia MetroNews reported in this Nov. 15 account of a suit filed by the Associated Press.
In 2008, the AP sued to try to force the West Virginia Supreme Court to release e-mail correspondence between then-Chief Justice Spike Maynard and Massey Energy CEO Don Blankenship.  The AP used West Virginia's Freedom of Information Act to argue the correspondence was a matter of public record.
“Under the clear language of the “public record” definition, a personal e-mail communication by a public official or public employee, which does not relate to the conduct of the public’s business, is not a public record subject to disclosure under FOIA,” wrote Justice Robin Davis in a 4-1 opinion.MetroNews opinion writer Hoppy Kercheval noted that "In the future, government officials trying to protect such correspondence will argue based on this decision that their e-mails were personal in nature and thus not subject to FOIA."  The AP had argued that since Blankenship had an interest in cases in front of the court, these e-mails were a matter of public record; the court disagreed.
State laws vary in this regard, and I am not aware of a precedent in Michigan. Â This review of state email disclosure laws published by the Law Librarian Blog lists precedents in Florida and Arizona that follow the West Virginia ruling, and a similar ruling in Idaho.
The Milwaukee Journal-Sentinel reports on a Nov. 10 case in front of the Wisconsin Supreme Court asking the question of whether a teacher's personal email is subject to FOIA; Â "The case arose from a citizen's request for five Wisconsin Rapids teachers' e-mails over 1 1/2 months in 2007. Teachers challenged the release of their e-mails, saying they were not public records and should not be released."
FOIA requests in progress at AnnArbor.com
Each week I review our coverage of stories that have been affected by FOIA requests and note work in progress.
Salem Township:Â We published an Oct. 15 story about a settlement of a case involving Salem Township on Open Meetings Act and Freedom of Information Act questions.
Michigan State Police:Â In law enforcement cases where multiple agencies are involved, or where there have been internal investigations, Freedom of Information Act requests through the Michigan State Police FOIA system seem to be relatively effective and efficient.
Washtenaw County Health Department:Â We'd like to get current and up-to-date restaurant inspection reports as they are published. The current system works, to a point, if you know the exact name of a restaurant; it does not yet lend itself to a straightforward bulk data download. I don't think it's that many lines of code to write, but it is code.
Edward Vielmetti is Lead Blogger at AnnArbor.com. He tries to be extra careful when figuring out which account to send e-mail from. Contact him at edwardvielmetti@annarbor.com.