FOI Advocate Blog

The NFOIC open government blog is a compendium of original concepts and analysis as well as ideas, edited excerpts and materials from a variety of sources. When the information comes from another source, we will attribute it and provide a link. The blog relies on the accuracy and integrity of the original sources cited; we will correct errors and inaccuracies when we become aware of them.

For Advocate posts prior to July, 2011, visit http://foiadvocate.blogspot.com/.
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August 15, 2013 9:49 AM

From WashingtonPost.com:  A federal judge said Wednesday that the Environmental Protection Agency may have tried to evade a Freedom of Information Act request and added that “numerous inconsistencies” in the agency’s court filings “undermine confidence in their truthfulness.”

As a result, Judge Royce C. Lamberth granted the conservative Landmark Legal Foundation, which filed the request for e-mails of current and former top EPA officials, the right to question them in person and in writing.

“The possibility that unsearched personal email accounts may have been used for official business raises the possibility that leaders in the EPA may have purposefully attempted to skirt disclosure under the FOIA,” Lamberth wrote.

Get the rest here.

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July 15, 2013 1:22 PM

From The Asbury Park Press:  Township Public Library Director Susan O’Neal zipped off a quick email to township government critic and library supporter Linda Baum on April 18, suggesting that she request a copy of the audio recording from the library meeting the prior night.

The tape, she assured, would show that two library trustees claimed the library wasn’t needed and another trustee making accusations back.

“Pretty hot stuff, which reinforces my opinion that ‘they’ are not through dismantling the MTPL,” she wrote after proclaiming that Baum missed “major fireworks.”

Nearly three months later, the exchanges catching the public’s attention are not between library trustees, but the emails, nearly 1½ year’s worth, between O’Neal and Baum.

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June 19, 2013 8:49 AM

From The Washington Post:  After the Associated Press reported this month that some Obama Cabinet officials have used alternative e-mail accounts in addition to government addresses to conduct federal business, The Washington Post talked with the National Archives and Records Administration about it and what’s new in the world of electronic recordkeeping.

Paul M. Wester Jr. is chief records officer for the archives agency and the first person to hold the job, which was created in 2011. He issues policy and guidance to federal agencies on which records they must keep and for how long, with an emphasis on electronic records, including the vast trove of e-mail created by federal officials.

  

June 4, 2013 8:53 AM

From Yahoo:  WASHINGTON (AP) — Some of President Barack Obama's political appointees, including the secretary for Health and Human Services, are using secret government email accounts they say are necessary to prevent their inboxes from being overwhelmed with unwanted messages, according to a review by The Associated Press.

The scope of using the secret accounts across government remains a mystery: Most U.S. agencies have failed to turn over lists of political appointees' email addresses, which the AP sought under the Freedom of Information Act more than three months ago. The Labor Department initially asked the AP to pay more than $1 million for its email addresses.

Visit Yahoo for the rest.

 

May 18, 2013 2:23 PM

Robert Becker, Lori Mince and Joey Senat discussed best practices and best outcomes when issues related to email and digital communications are legislated or litigated in states. The panel was moderated by Scott Sternberg.

Please find the speakers' biographies here.

Lori Mince started by discussing how to identify whether email records are public records. The key is to find out how a state defines public records, she said. The toughest part of email records from an open government perspective is email about public business sent from a private email address of a public official.

Joey Senat identified the issues regarding public official's email records.

"State public records laws do not necessarily prohibit government officials from using their privately owned electronic communication devices to do their work," Senat said. He said content of emails, not ownership of devices, should determine whether it is a public record.

Senat provided solutions to the matter:

  • Rewrite state FOI statutes to articulate that records of public business are subject to disclosure even if the government official owns the device or account.
  • Expressively prohibit in the proposed statute.
  • Require government to follow and archive those records within a certain amount of time.

Robert Becker talked about the situation in Washington, D.C. and text messages as records. He said a major problem with the use of text messaging is that ISPs and phone companies have their own retention schedules.

Scott Sternberg discussed the problems in New Orleans and recommended ways to find out if public officials are discussing public business through emails prior to or during public meetings. He said that there is not really a way to do that. The best solution is developing news sources who are willing to disclose wrongdoings of government officials.

Mince advised journalists to ask for documents in their “native electronic formats.”

Please visit our 2013 FOI Summit homepage for more information and coverage. For tweets about the 2013 FOI Summit go to #FOISummit, and follow us @nfoic.

 

May 9, 2013 9:26 AM

From The Morning Call: [...] A state court recently said Pennsylvania government offices don't have to provide the public with all of the phone numbers and email addresses assigned to their employees.

State lawyers convinced Commonwealth Court that some numbers and email addresses don't have to be disclosed because they are "personal." It doesn't matter if they're paid for with the public's money and are used — in theory, at least — to conduct the public's business.

 

May 2, 2013 3:01 PM

From East County Magazine:

May 2, 2013 (San Diego’s East County) – The First Amendment Coalition has issued advice to public officials in light of a court ruling that found private e-mails used by San Jose city officials to discuss public business must be disclosed if a Public Records Act request is received. The ruling is on appeal and is expected to be upheld, according to legal experts, which would set a statewide precedent.

“Public officials beware: The appeal courts’ affirmance is likely to apply to all government emails, not just to emails written after the courts’ decision," the First Amendment Coalition warns. "That means the emails you write today, using a private account to discuss government business, will have to be disclosed in the future.”

The California First Amendment Coalition is a member of NFOIC. --eds

April 24, 2013 1:58 PM

From San Diego City Beat:

I love public records laws like a firefighter loves his ax. I love the heft of the federal Freedom of Information Act (or the California Public Records Act) when I slam it into the door of the establishment. And I love it when it gets sharpened.

Since 2009, open-records activists and the city of San Jose have waged a court battle over how far these laws—which are designed to make sure citizens can access government documents—extend to digital communications, particularly when an official decides to use his private email rather than his government-issued account. 

[...]

Government documents belong to the people, and it doesn't matter where the documents are.

 

April 10, 2013 12:11 PM

From San Jose Mercury News:

SAN JOSE -- San Jose officials voted unanimously Tuesday to appeal a judge's landmark ruling last month that city officials' communications about city business are public records even if sent and received on private text, email or other electronic networks.
 
Santa Clara County Superior Court Judge James Kleinberg's decision last month was a victory for San Jose activist Ted Smith, who sued the city in August 2009 over its refusal to disclose officials' personal electronic communications.
 
[...]
 
Peter Scheer, executive director of the First Amendment Coalition in San Rafael, said the ruling would close a loophole in California's public records law created by uncertainty over how the act applies in the iPhone and Facebook era where public officials often communicate with personal smart phones and social networks. No California court decision has directly answered that question, he said.

 

March 25, 2013 10:45 AM

From The Modesto Bee:

An attorney claims Modesto is violating the state's public records law because the city's computers automatically purge emails once they are 30 days old.

Sacramento attorney Kelly T. Smith filed papers Friday in Stanislaus County Superior Court, asking a judge to order the city to stop deleting emails and revise its policies to come into compliance with the California Public Records Act.

The act requires local governments to make most of their records — such as settlement agreements to lawsuits and claims filed against them — available to the public for inspection and copying.

 

March 25, 2013 10:44 AM

From First Amendment Coalition:

In a big victory for open government, a Superior Court judge in San Jose has ruled that the state’s Public Records Act applies to government officials’ emails and texts about government business–EVEN IF those messages are sent or received using the officials’ private email or text accounts, rather than accounts belonging to the government.

The decision by Superior Court Judge James Kleinberg rejected San Jose’s argument that local governments can’t be held legally responsible for digital messages that reside in computer servers that they don’t own, lease, use or control. Judge Kleinberg reasoned that government officials, when emailing and texting about government business, are functioning as agents of the city. The officials’ ownership and control of the messages is imputed to the city.

The decision is consistent with FAC’s 2012 suit against the city of Auburn. That case ended in a settlement in which Auburn agreed to adopt policies requiring city officials, when emailing about city business using their personal email accounts, to “cc” the emails to a city mail server where they would be stored in a searchable archive.

In recent years more and more government officials have turned to personal email accounts as a back channel for official communications, believing that those communications are shielded from disclosure under the Public Records Act. The new decision, Ted Smith v. City of San Jose et al., suggests that belief may be misplaced.

Please see the complete article and the full text of Judge Kleinberg’s decision on the First Amendment Coalition's website. Also see a previous blog post, San Jose court rules text messages and emails are public records, for more background information.

Peter Scheer is the executive director of the First Amendment Coalition. The First Amendment Coalition is a member of NFOIC. --eds

March 22, 2013 10:32 AM

From Hews Media Group-Community News:

A Northern California judge has ruled that private text messages, emails and other electronic communications sent and received by San Jose officials about city affairs are public records.
 
The ruling Friday in Santa Clara County has the potential to settle a long-simmering legal debate in California over access to such records.
 
The state’s Public Record Acts and other laws require communications of elected officials and other public officials on public issues to be retained and turned over upon request.
 
While 26 states view the use of private emails for government business as public records, California and the rest have no clear rules or prevailing case law — a source for continuing turmoil in state courts, according to the Reporters Committee for the Freedom of the Press.

 

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