MRSC FOCUS › Council/Commission Advisor November 2008

MRSC has joined with Cary Bozeman, Mayor, City of Bremerton, Carl Neu, Director of the Center for the Future of Local Governance, P. Stephen DiJulio, Attorney, Foster Pepper PLLC, and Ann Macfarlane, Registered Parliamentarian, Jurassic Parliament, to bring you the "Council/Commission Advisor." The Council/Commission Advisor will feature a new article each month with timely information and advice you can use.*

Five Issues You Should Consider Before You Decide to Use Your Personal Email Account or Personal Computer for Official Public Business (and five ideas to help ensure that use is transparent)

November 2008

By Steve DiJulio, Attorney and Ramsey Ramerman, Attorney
Foster Pepper PLLC

Recent headlines about vice-presidential candidate Sarah Palin’s use of Yahoo email accounts for official state business have pushed an issue into the national spotlight: “When is it permissible for public officials to use personal email accounts and personal computers for official government business?”

Five Issues to Consider

The short answer is that Washington law does not prohibit the use of personal email accounts and personal computers for official business. But there are at least five issues that you should consider before you “mix” your personal and official matters in this way.

Records you create, use or retain that are related to governmental business are public records, whatever their form. Under the definition of “public record” in the State’s Public Records Act, a record is judged by its content and use, not simply by how it was created or retained. A commissioner or councilmember’s email about the next budget is a public record whether the email address ends with “.com,” “.org,” or “.gov.” An elected official’s memorandum to others on pending legislation is a public record, whether it is prepared in the government office or on a home computer.
Undisclosed use of private email accounts and computers can erode public confidence. Members of the public may believe that local government officials only use the government’s email system for official communications. Email on personal systems may appear an effort to avoid disclosure or to hide information. Open communication regarding your particular practices would serve to avoid such speculation or criticism. For example, the City’s website may provide notice of your personal email address and government email address (when one is provided by the local government).
Web-based email accounts can be security risks. The hacking of Governor Palin’s email accounts highlights the risk of using web-based email accounts such as Yahoo Mail or Gmail – a skilled hacker can break into these types of accounts. This could compromise any confidential information sent through a web-based email account. A malevolent hacker could also send emails from the account, further damaging your reputation and that of the municipality.
Private, personal, non-governmental information in email accounts and on personal computers could be searched. If you have been conducting governmental business on a personal computer or through a personal email account, that computer and email account will have to be searched in response to a public records request. And as demonstrated by a recent case, O’Neill v. City of Shoreline, -- Wn. App. --, 187 P.3d 822 (2008), if the request results in a lawsuit and a court is not satisfied with your search, the court may order your entire hard drive searched by someone else. While this does not mean the entire hard drive will become a public record, it does mean someone else will have access to your computer and your personal files.
Work-related emails and text messages on you cell phone and BlackBerry or other “PDA” are public records. Besides your home computer, you may also have public records on your cell-phone or “personal digital assistant” (“PDA”) such as a BlackBerry. A text message or email that is related to official government business meets the broad definition of public record. Because these records often are not saved elsewhere, other than in the PDA, they can be easy to overlook.

Five Ideas to Increase Transparency Without Sacrificing Privacy

The convenience of using personal computers and personal email accounts is undeniable. This is particularly true given that most local elected officials serve part-time. If, after considering the above issues, you still decide to use your personal computer or personal email account (or, your local government does not provide for email on the government’s system), there are at least five steps you can take to increase transparency and protect your privacy at the same time.

Make sure the public knows about the practice. When the public first learns about private email accounts as part of a dispute or controversy, it is easy to accuse public officials of trying to keep facts out of the public eye. But if you disclose in advance your use of a personal email account for official business, it will create the opposite effect by demonstrating that you have nothing to hide. Also, if you have a campaign email account, make sure the public knows that account is separate from any email account you use for official business.
Keep your official emails and records clearly segregated from your personal records. If you choose to use a web-based email account for official business, open an account solely for that purpose, making it your “official” personal email account. And don’t use it for any personal emails. Likewise, if you also have a truly personal account, do not use that account for any official work. (If someone sends an email to the wrong account, forward it to the correct account, respond from that account and instruct the sender to only use the correct account.) You may also want to have a web-based email account for campaign purposes – make sure you keep that clearly segregated from any email account you use for official business. Otherwise, you may risk having your campaign-related emails treated as public records. And, of course, you should never send campaign-related emails from any governmental email account. When using your personal computer, create a folder for all official records and be consistent and diligent about putting any government-related records in that folder.
Take steps to ensure your records are properly retained under the state retention guidelines. Because government-related emails and records on personal email accounts and personal computers are still public records, they are subject to the same retention guidelines as any other similar record. Your email account, however, may have automatic deletion policies. Personal computers can crash, causing you to lose any public records stored on the computer. Therefore, you need to understand how long these records must be maintained and to take steps sufficient to assure the records are not deleted prematurely. Using an external hard drive to back up your records and emails is a recommended precaution.
Adopt a policy governing the use of personal email accounts and personal computers. Adopting an official policy has many advantages. The policy can serve to instruct employees on the necessary steps for security and retention. It helps inform the public so there are no surprises when an issue or controversy arises. If a lawsuit is filed and you are called to prove that you have made a thorough search in response to a public records request, a policy can help convince a court that it is not necessary to completely scour your personal records in search of “public records.” Your policy should also cover text messages and emails on PDAs.
Copy your official email account on all government-related correspondence. If you have an official email account with your municipality but are still using a web-based email account, always “cc” your official account on work-related emails you send from your web-based account and forward any emails you receive on your web-based account to your official account. This assures that your municipality will have a copy of all emails that constitute public records, making it easier for the your municipality to respond to any public records request. It also decreases the chance that it will be necessary to search your personal computer.

Technology today offers many conveniences, particularly to the part-time legislator. Not taking full advantage of these advances can be impractical and even fiscally irresponsible. But Washington’s Public Records Act (and associated record retention laws) require you to make a considered decision before you use personal email accounts and personal computers. Moreover, the failure to take steps to ensure transparency can cause harm to you and your local government’s credibility, eliminating any advantages from use of these conveniences.

A Note about Constituent Emails

An additional issue arises with emails from constituents, where the law is poorly developed. In Eugster v. City of Spokane, 121 Wn. App. 799 (2004), the court applied the First Amendment right of association to hold that a constituent’s correspondence with elected officials regarding political activity could be withheld in discovery. But in O’Neill v. Shoreline, the court held that a constituent email specifically referenced by a councilmember in a public meeting was a public record, and subject to disclosure. Because of the undeveloped state of the law on this issue, you should seek legal advice before withholding any emails based on your First Amendment rights.

A Note about emails and the OPMA

Anytime you are sending emails to fellow commissioners or councilmembers, remember that a Washington appellate court has ruled that email exchanges can constitute a “meeting” under the Open Public Meetings Act. For more information on this topic see “The Open Public Meetings Act and Electronic Communications,” Council/Commissioner Advisor (December, 2006).

P. Stephen DiJulio, a partner at Foster Pepper & Shefelman PLLC, focuses on litigation involving state and local governments, and land use and environmental law. Particular experience includes representation of jurisdictions on eminent domain, utilities (water, wastewater, storm water, solid waste systems), local improvement districts, facility siting and contractor litigation. More.

Carl Neu, author and consultant, is recognized nationally as an authority on, and an experienced practitioner of, the theory and application of governance and leadership to city councils and county boards, local government managers, and community leaders. More.

Ann G. Macfarlane is a Registered Parliamentarian. She created Jurassic Parliament to make parliamentary procedure easy to learn and memorable. She provides training on leadership, meeting management, parliamentary procedure and organizational development across the U.S.

Cary Bozeman was elected to a four-year term as Mayor of Bremerton and began serving January 1, 2002. He was re-elected to another four year term that began January 1, 2006. From 1996 through 2001, Mayor Bozeman was the Executive Director of the Olympic College Foundation. Mayor Bozeman served on the Bellevue, Washington City Council from 1976 through 1993. During that time, he was elected by the City Council to three terms as Mayor.

*The Articles appearing in the "Council/Commission" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.