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Email privacy: Court ruling offers workable approach

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Posted: Friday, October 19, 2012 12:10 am | Updated: 4:16 pm, Fri Jan 25, 2013.

News-Miner editorial

The Alaska Supreme Court seems to have taken a reasonable approach to the difficult issues raised by the use of private email accounts by state employees to communicate about state business.

First, the court said merely using a private email account to communicate about state business does not violate the state’s public records law. That’s the only practical solution for today’s world, one in which people should be free to use all sorts of channels to communicate.

However, if a particular email is a record that is “appropriate for preservation,” it must be preserved, and the public must be allowed to see it, the court said.

So what sort of emails are “appropriate for preservation”? The court didn’t lay that out.

State law offers a partial answer, but it’s confusing.

The law defines “public records” as these: “books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency ... ”

A reader can detect immediately the problem with this definition. A literal reading of the statute means that public records are only those that “are preserved.” Anything that isn’t preserved is, by the above definition, not a public record.

That’s absurd, observed Andrée McLeod, the person who brought the case to the Supreme Court. A literal interpretation of the law, she noted, “grants ‘elected and appointed officials’ authority to ... simply, and quite privately, decide not to ‘preserve’ a record that, for whatever reason — including avoiding political embarrassment or because the record is evidence of mis or malfeasance — they do not want the public to see.”

The court agreed. It affirmed a lower court decision that said records “that should be preserved are also public records,” regardless if any action has been taken to preserve them.

“State agency records preserved or appropriate for preservation under the Records Management Act are public records subject to review under the Public Records Act,” the Supreme Court concluded. “But not every record a state employee creates, and certainly not every state employee email, is necessarily appropriate for preservation under the Records Management Act.”

This leaves a lot of room to argue about whether a specific email is a public record. However, the court’s ruling at least means emails sent on private accounts are not automatically exempt from the state public records law, and that’s an important ruling in the public’s interest.

The state administration, for the moment, requires employees to copy all emails having to do with state business to the state email system. Theoretically, everything is captured for later review, if necessary. Of course, in the real world, that might not always happen. So it’s good that the court affirmed that communications found solely in private email accounts are not necessarily protected from the public eye.

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