Digital communications are the new arena for battles over government transparency. Public officials, like the rest of society, rely on email for communications about business–government business. While those emails are indisputably public records when sent or received by means of a government email account, the legal status of the very same emails, if sent from a personal email account, is not so clear–and, in fact, is the subject of an ongoing lawsuit that is headed to the Supreme Court.
This personal-email-loophole is rarely defended on grounds of principle (which is not surprising, since there’s nothing principled about the brazen evasion of the public records law). Rather, the use of personal email for government business is defended on practical grounds: Accessing public records in a government official’s private gmail or yahoo account is just too difficult, say lawyers representing municipal governments and local agencies.
To address the concern about practicality, we thought it would be helpful to provide a model policy for local governments’ management of their email, with an emphasis on simplicity and practicality. Here is the First Amendment Coalition’s Model Email Policy:
All agency staff, when communicating by email on agency business, must use the agency’s email system and server OR copy such emails to an address on the agency server.
All email on the agency’s email server will be preserved for a minimum of TWO years.
The storage of emails on an agency server does not affect their status under the California Public Records Act (CPRA). When responding to a CPRA request for emails, the agency may consider the applicability of any relevant CPRA exemption.
Its simplicity notwithstanding, this three-point policy addresses the email issue comprehensively. Note that it does not require the use of “dot-gov” email accounts exclusively. Public officials may use personal email (and their personal smartphones too) for government business—as long as they “cc” those emails to the agency’s email server. This means the agency server will be the repository for all email on government business, regardless of which email account is used to create the messages.
The two-year email retention policy is not burdensome, given the low (and falling) cost of data storage. The policy frees government employees to delete their own email files, if and when they wish to. Maintaining all emails on one server also facilitates searching for emails. This reduces the cost of responding to CPRA requests, while also providing management with a valuable tool for internal agency research.
Finally, FAC’s model policy clarifies, for the benefit of government employees, that the storing of email on the agency server does not waive or compromise CPRA exemptions that the agency could invoke to deny public record requests. This removes from employees–who, after all, are not experts on the CPRA–the responsibility for deciding which emails must be saved (as nonexempt public records) and which ones may be deleted.
Local governments should adopt this email policy. Regardless of how the courts ultimately decide the issue of CPRA coverage, government agencies need to have control over all their business files. This is the case whether the files reside in a city hall file room, a database on the premises, or the city manager’s personal email account. –Peter Scheer, FAC executive director