Your E-mails...and the Public Records Law

Some years ago, two local government employees who had been entangled in an illicit romantic relationship were subject to discipline by their employer for using the agency e-mail network to exchange amorous messages. What made the incident news (rather than idle gossip) was the fact that the substance of some of the messages was reprinted in the local newspaper.

The episode no doubt jarred many public employees, and not merely as a cautionary tale as to what can happen when romance contaminates the work ethic. Rather, it awakened those employees as to the possibility that personal e-mails sent over the public employer's e-mail system might be made available for public inspection (and, potentially, ridicule).

Maricopa's administrative regulation on electronic communications holds that the use of the e-mail network "for private or personal business in violation of MCCCD policies" is an unacceptable use. Moreover, the Maricopa computing resource standards assert that the use of those 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."

By now, public employees know that state statutes mandate most records not otherwise deemed confidential by law must be accessible to the public. (Last winter's edition of In Brief reported on the new Governing Board policy regarding public records.)

The computing resource standards acknowledge that public records laws loom large over records such as e-mails: "To 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 computing resources."

Two recent court decisions, however, question whether personal e-mails sent over a public agency system-admittedly in violation of the agency's policies-are indeed public record. In Tiberino v. Spokane County, for example, an assistant in an Oregon prosecutor's office was fired for sending e-mails (which, according to the court, contained "coarse and vulgar language") to her mother and sister on work time.

The court refused, however, to compel disclosure of the messages to the local newspaper. The content of the messages, it stated, "was of no public significance."

A similar holding came out of State v. City of Clearwater, in which a Florida newspaper demanded to see personal e-mails that two public employees had created on their agency network.

The Florida court rejected the newspaper's demands. In avoiding what it termed an "absurd" result, the court rhetorically asked, if a public employee "brings his household bills to the office to work on during lunch, do they become public record if he temporarily puts them in his desk drawer?"

No Arizona court has yet ruled specifically on the issue, and public employees will likely continue to be wary of sending personal e-mails on work time. If nothing else, though, the decisions out of Oregon and Florida illustrate that the public's right to know has its limits.

Published in the Spring 2004 Edition of In Brief