GRB Law. Goehring Rutter & Boehm. Straightforward Thinking.

Right-to-Know Law Update: Public Official’s Emails

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How many “conversations” do you have each day where you don’t have to say a word?  Whether you are discussing strategy with a business colleague or letting your family know when you’ll be home for dinner, communication tools such as email, texting and tweeting have become the preferred ways to communicate for many of us.  Social media has so dramatically affected our lives that some social commentators have dubbed the year 2010 as “the year we all stopped talking to one another.”1   
Even if we aren’t talking to one another, we are certainly communicating.  As a local official, do you have a personal email account or cell phone with communications (and maybe a couple of well meaning complaints) from your constituents?  Have you ever emailed your mayor or posted to your local school board member’s Facebook page?  If so, you were walking the Right To Know Law tightrope.   
The Right to Know Law requires that local government provide access or copies to public records upon request.  A public record is a record in the possession of the local agency.  In a recently litigated case, an individual requested copies of emails between a township commissioner and 18 people involved in building proposed developments in the township.  The township’s computer system was configured so that all emails sent to commissioners through the township website were routed to another e-mail address picked by the official.  
The citizen requesting the information argued that the elected officials should not be allowed to hide government business by receiving and sending emails on their personal email accounts.  Ultimately, the Commonwealth Court decided that these emails were not public records.  The Court reasoned that an individual public official has no authority to act alone on behalf of the local agency.  Therefore, emails and documents found on an individual public official’s personal computer would not fall within the definition of a public record.
This decision may give both elected officials and constituents who are communicating privately with one another a little peace of mind.  In order to obtain the same result, public officials should make sure that communication, in any of its modern iterations, is being channeled through personal contact information.   
This case highlights that our sense of “privacy” is challenged everyday by modern communication and media.  In litigation, information down to keystrokes and deleted information can be resurrected from metadata. Most employers reserve the right to monitor and limit work email and web content. Our suggestion? Understand the potential downfalls of social media. And when possible, pick up the phone…to talk. 
1 “2010: The year technology replaced talking,” Sharon Jayson. USA Today, December 30, 2010.