From the Wilmington Star-News (6/9/09): When it comes to e-mails on a government system, it's safe to assume nothing is private, attorneys with the N.C. Press Association say.
Debate over whether personal e-mails are public records recently surfaced in Brunswick County after County Attorney Huey Marshall informed staff members that their personal e-mails are not public record.
After attending a conference in early May in Wilmington where Frayda Bluestein of the N.C. School of Government told attorneys across the state via satellite that personal e-mails are not public record, Marshall passed along the advice.
But the N.C. Press Association disagrees.
“Who is the one who’s going to decide which is which?” asked Ashley Perkinson, counsel to the press association.
But Bluestein bases her understanding of the law on the basic definition of a public record, which states public records are records made or received to deal with public business.
She acknowledged that what constitutes a personal e-mail could be a “fuzzy” thing.
All the attorneys agree e-mails that include content pertaining to government business, regardless of whether the account is personal or a government-issued account, are public record.
But the issue of personal content is where the issue gets murky, said Mike Tadych, counsel to the press association and member of the firm that sued former Gov. Mike Easley over the destruction of e-mail records.
He said he can understand that a county employee might not want an e-mail with information about a sick relative to become public, but the association is advocating for Easley and Gov. Beverly Perdue to say on the record that there is no expectation of privacy in a government e-mail.
“It’s like a school kid’s locker,” he said.
Bluestein argues that privacy is a different issue than what should be open to the general public.
The News and Observer, along with nine other media organizations, sued Easley last year over deletion of e-mails, saying he violated the public records law.
Tadych said they are currently in discussions with the former governor and Perdue over the lawsuit.
The public records law includes exemptions for certain e-mails, such as personnel matters and criminal investigation records. But it does not specifically address personal e-mails.
The StarNews requested in February to review the e-mails sent and received by county administration officials and again in April. Since then, the county’s MIS department has been working on a system that would allow any member of the public to view the e-mails of the county manager, assistant county manger and county attorney. The request also included the board of commissioners, but they all use personal e-mail accounts.
The StarNews has individually requested each commissioner forward e-mails sent or received by the commissioners that pertain to public business. The StarNews has also received e-mails sent and received by a main board of commissioner e-mail account and e-mails to and from the county attorney.
The StarNews has asked to review all e-mails on the county system once a viewer is established.
Steve Randone, director of the MIS department, said he was modeling the viewer after one used by New Hanover County, where all the e-mails show up in an in-box on a public terminal.
But he said Brunswick County’s e-mail system is less sophisticated and has taken some adjustments to get the viewer working.
He plans to test it this week and have it available soon. Once it is up and running, Randone said, he would add department leaders’ e-mails and then look at putting all e-mails on the system.
But he said there would be a filter process to keep confidential e-mails from showing up. He said the sender would label the e-mail “private” and it would not show up.
That leaves the decision as to what is public record up to the person sending the e-mail.
“What’s filtering the sender?” Tadych questioned.
Marshall said officials who withheld public records would be at risk of being sued.
by Shelby Sebens, Star-News Staff Writer