Public Records Law Exposed!

Recent claims against a municipal court judge alleging misuse of a city court's e-mail network have served to remind all public officials--including Maricopa employees--of the public nature of electronic communications.

Officials accused the magistrate of having sent to city employees over the municipal e-mail system various jokes of a sexual nature. Faced with criticism that such conduct was an improper use of the city's network--and possibly even sexual harassment--the judge resigned from the bench.

Following up on these allegations, local news media requested--pursuant to Arizona's public records laws--that the city provide copies of every e-mail transmission the judge had initiated during a specified period of time.

The public records laws (which consist of both state statutes and court rulings) hold that records created by public officers and employees in the course of discharging their duties are public records. Those laws further mandate that public records be maintained by a public entity and remain open for inspection by the public.

According to Arizona statutes, public records include electronic records, such as e-mail and documents maintained on desktop computers and local area networks. Agencies whose records are subject to the public records laws include political subdivisions, such as community college districts. Authorities generally agree that employees of these agencies and political subdivisions are likewise bound by public records laws.

Not every record created in the course of an agency's business is a public record. The public may not have unilateral access to records that are confidential by law.

For educational institutions, the most prominent example of legally confidential information is education records under the Family Educational Rights and Privacy Act (FERPA).

Under FERPA, a college or university generally may not release a student's education records--most typically, grades and similar data--without first obtaining the consent of the student. As FERPA protects the confidentiality of such information, education records would not be subject to the public records law.

Employees of educational institutions, however, maintain many records that do not pertain to a particular student. Absent some provision under law that would protect those records from disclosure, they would likely be deemed public.

Maricopa's Computing Resource Standards provide that, "[t]o the extent possible in the electronic environment and in a public setting, a user's privacy will be honored."

That privacy, however, "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 computing resources."

That e-mail records could be deemed public records, then, will likely make public employees wary of the contents of their e-mail transmissions.

Published in the Fall 1999 Edition of In Brief