It is now firmly established that emails sent or received by government officials are subject to public review under state open-records laws. In a pair of recent rulings, Pennsylvania courts have clarified when an elected official’s email will and won’t be exempt from disclosure.
These cases reemphasize two points important to any journalist seeking access to email correspondence: (1) that the subject of the communication, not the ownership of the email account or the computer, is what makes a document “public” or “private,” and (2) that a record can be public even if it contains only preliminary deliberations between two government officials.
In the most recent case, Easton Area School District v. Baxter, the Commonwealth Court of Pennsylvania ruled Jan. 24 that a reporter for the Allentown Morning Call was entitled to email correspondence between members of the local school board.
Lawyers for the school board had argued for a very narrow definition of “public record” that would cover only records of official agency decisions. Since individual school board members do not have the authority to make policy for the district, the school board argued, their communications are not “records.”
The court made short work of that argument: “While an individual school board member lacks the authority to take final action on behalf of the entire board, that individual acting in his or her official capacity, nonetheless, constitutes agency activity when discussing agency business.”
The Baxter ruling was not a complete win for public access. The judges rejected the Morning Call‘s argument that all emails stored on government computers are always public records, and said only those in which the board members were discussing agency business could be reached by way of the Right-to-Know-Law.
Baxter built on a December 2011 court ruling, Mollick v. Township of Worcester, that addressed public access to the emails of city council members sent on private, non-city email accounts.
In the Mollick case, the Commonwealth Court decided that emails on a non-governmental account (such as a personal Gmail or Hotmail account) could still be records “of” the government agency even though they were not maintained by the city — if they were exchanged as part of a “deliberation” among a majority of the council’s members.
The ruling in Baxter is a helpful elaboration on Mollick, because it clarifies that communications need not involve a voting majority of a legislative body in order to qualify as public records.
While these court interpretations are binding only in Pennsylvania, they are relatively typical of how courts everywhere are applying laws written in the paper-and-books generation to an e-document world.
Of course, it bears reinforcing that open-records laws represent the minimum that a government agency must turn over. Good reporters frequently can get sources to part with documents beyond those clearly subject to disclosure under the law. And with a few limited exceptions, open records laws do not forbid the discretionary release of a document.
Journalists shouldn’t anticipate a rejection and ask only for the material they are most certain of receiving. Government officials can, and do, at times surrender more than the law absolutely requires.