Are Private Email Accounts Subject to Public Records Requests?

february 15, 2013  03:00 pm
Are Private Email Accounts Subject to Public Records Requests?
The Columbia Journalism Review has a good explainer on the Santa Fe Reporter's efforts to obtain emails from the office of New Mexico Gov. Susana Martinez:
The governor's office allegedly had instructed appointees to use their private emails in order to evade scrutiny and public records requests. A week after the emails starting coming out, Martinez announced that she was now telling all state employees to use their work email accounts to conduct state business. But the Santa Fe Reporter, an alt-weekly with a circulation of 23,000, had already seen its chance to test the state's freedom of information law.

The Reporter depends heavily on public records requests for its investigative reporting, and its reporters and editors had long had suspicions that the Governor's office wasn't releasing as much information as it should. A request for Gov. Martinez's schedule, for instance, came back with weeks blank. So the paper submitted a request that purposely covered some of the just-leaked emails to see if it could get the governor's office to release them officially. By requesting private emails they already knew existed, Editor in Chief Alexa Schirtzinger and her staff hoped they could find out more about how the Governor's office was interpreting its responsibility to disclose public information.

In a recent letter to the Governor's office, the state's Assistant Attorney General said that all emails used to conduct public business are public records, "without regard to whether the e-mail is created or maintained on a public or private e-mail account."

The letter also says the Governor's office could be liable for up to $100 per day since August 2012 for failing to respond. As Schirtzinger pointed out to AAN, that adds up to over $18,000.

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