Public Access to Personal Email
Over the last few years, many members of the Maricopa community have had first-hand experience with laws regarding public records. Requests for access to employee e-mails made pursuant to these laws have required disclosure of many such records.
Consequently, most have come to know the potentially public nature of whatever might be memorialized in an e-mail communication.
This public nature is contemplated in the District’s Technology Resource Standards. The Standards do assure the user of the Maricopa e-mail network that, “[t]o the extent possible in the electronic environment and in a public setting, a user’s privacy will be honored.
“Nevertheless, that privacy is subject to Arizona’s public records laws and other applicable state and federal laws, as well as policies of Maricopa’s Governing Board, all of which may supersede a user’s interests in maintaining privacy in information contained in Maricopa’s technology resources.”
The extent to which any desire for privacy may be honored is subject, however, to more general requirements prescribed by the Standards. Most notably, use of Maricopa’s technology resources, including the e-mail network, “is limited to educational, research, service, operational, and management purposes of the Maricopa County Community College District and its member institutions.”
A recent decision from the state’s court of appeals, however, addresses whether personal e-mails a user maintains on a public employer’s e-mail network--indisputably contrary to that employer’s acceptable use policy--might constitute public records which the public might have the right to inspect.
In Griffis v. Pinal County, a county manager became the target of an investigation over misconduct. When the media requested hundreds of his e-mails sent over the county network, he sought to block the disclosure of e-mails of a “personal nature,” including “communications regarding a personal vacation and . . . purchases from online retailers.”
The court held that such personal e-mails were not subject to disclosure as a public record. They were not created by a public officer in pursuance of a duty, the manager held no statutory duty to create or use the e-mails, and they were neither relevant nor appropriate to any discharge of the manager’s duties.
In the court’s view, an e-mail is analogous to a telephone call. “Because of their transitory nature, the content of telephone calls generally would not be considered a public record.
“In our view, it defies logic to believe the legislature intended to require every state officer or employee, for purposes of disclosure on a public records request, to record the content of all of his or her personal telephone calls . . . .
"It would be just as illogical to infer any such intent with respect to electronic forms of communication that are purely personal in nature, even though e-mails are essentially self-documenting and easily retained.”
No aspect of the Griffis opinion suggests that, notwithstanding the mandates of a policy such as Maricopa’s Technology Resource Standards, a user should feel comfortable in using the employer’s e-mail system for personal purposes.
Furthermore, the ruling does not address whether, for instance, the entirety of an e-mail communication addressing both personal and business matters might be subject to disclosure in the event of a public records request.
It does, however, help to define the limits of the public’s right to know.
in the Fall 2006 Edition of In Brief