From the Raleigh Telegram (4/8/10): After a recent lawsuit in North Carolina where a public official successfully defended against a lawsuit from an online newspaper that had requested a copy of an e-mail that was characterized as "personal," we asked Raleigh media attorney John Bussian some questions about the topic.
When is a public official’s email public and when is it private? That’s a tough distinction and an online newspaper in Oriental unsuccessfully argued last month that an email sent from a publicly owned computer by a public official during work hours should be made public.
In a ruling in Pamlico County against the Pamlico Today website, the courts said that after reviewing it, the judge felt that the email sent by the Oriental Town Manager to a third party was indeed private.
John Bussian, who represents media clients including the NC Press Association as part of their media legal hotline, and writes a column about legal matters for newspapers, answered some questions we had about the legal issues surrounding government worker emails.
1. What is the legal distinction between a “personal” email and a “public records” email?
If email has anything to do with government business, especially if received on a government owned computer, it is public record as a matter of law.
Former Governor Easley, for example, wrongly declined to produce for public inspection a handritten note from Ms Hooker-Odom partly concerning mental health funding.
Since the note was received by a government official, the portion of the note relating to the finding issue is a public record, not a private one. The same is true of all the email sent or received by Governor Easley or his office that is currently the subject of litigation.
2. If it’s not read by a judge, who decides if it’s personal or public record?
Initially, the governmentt official who receives or generates an email message has to decide whether the message has to do with government business in whole or in part. If it does, the message has to be saved for public inspection for a reasonable amt of time.
3. Are personal emails required to be kept as records?
Yes, if the message relates even partly to government business, criticism of that official on the job, or job performance.
4. How can newspapers and the public guard against abuse, such as if public records are erroneously classified as private?
Make a standing request to the government official or agency to see email correspondence that relates in whole or in part to government matters in which you are interested in covering. Review it at least weekly.
5. What if an email has both public and private purposes?
It is public record and must be preserved for inspection. Purely personal text may be redacted, but only to extent the text does not pertain to government matters.
6. Other than the recent case involving Governor Easley , are there many cases of politicians, etc. trying to classify emails as personal?
Yes, it happens regularly. In a famous case, then-UNC system head C.D. Spangler fought a [Raleigh] News and Observer request to review his correspondence. The News and Observer won.
7. If a newspaper sues and loses, is it guaranteed that they will have to pay the legal costs of the defendant?
According to the NC Court of Appeals’ fairly recent decision in Boney Publishing versus City of Burlington, NC, open government laws are not supposed to allow the government to recover fees from citizens or journalists who sue to try to enforce access rights.
Only if a case is entirely “frivolous” can a government party be awarded legal expenses against the public or press. Mr Tharp’s. claim [in the recent Pamlico Today case] can hardly be considered frivolous.
8. Any other comments about the whole issue?
The excuse by government interests for not revealing email messages received on government computers — purportedly because the messages are “personal” — is widely abused.
For that reason, the “Freeman Commission” that reviewed the Easley email controversy recommended that ALL in and outbound email be retained long enough for the public or press to request to see it. Otherwise, only the fox would guard the henhouse.
by R. Gregg, Raleigh Telegram Staff Writer