The Associated Press published an insightful story by Jack Gillum on Saturday that shines light on the practice of government officials using personal email accounts to sidestep public records laws.
In this case, a top aide to New Jersey Gov. Chris Christie used her Yahoo email account to send messages about closing bridge lanes to an official with the Port Authority of New York and New Jersey.
The closure resulted in huge traffic backups and is being viewed as politically motivated payback to the mayor of Fort Lee for refusing to endorse Christie for governor.
As the scandal unfolds, Gillum’s article reveals a troubling gap in public records policies concerning how such email records should be disclosed.
And it’s a flag that journalists and citizens should be specific when they request emails under the public records law and ask for all email, whether sent on government accounts or personal accounts.
In Tennessee, messages conducting government business are subject to disclosure under the state’s Public Records Act, regardless of how they are sent. This has held up in practice as well as been supported in case law.
“In my mind, there is no distinction whether it’s a government account or personal account,” said Open Records Counsel Elisha Hodge. “If you are conducting government business on any account, those records are subject to Tennessee’s Public Records Act.”
Hodge cited case law and the statutory definition of public records in her February 2011 opinion that messages sent from the personal phone of a Clarksville city employee conducting city business were subject to the Tennessee Public Records Act.
She noted that “the content of the record and the purpose for which it was made or received” is the focus of Tennessee’s public records law.
“When defining ‘public record,’ the General Assembly made no mention of where, when or on whose equipment a record has to be made or received in order for it to be accessible to the public,” she wrote.
In another situation, The Commercial Appeal gained access to business emails sent on a staff member’s personal email account in its investigation into Memphis Light, Gas and Water Division several years ago.
Media lawyer Lucian Pera, who represents The Commercial Appeal, likened the use of a second email account to the storyline in Breaking Bad where chemistry teacher Walter White uses a second cell phone to secretly run his meth business.
At one point, White is teaching class, and the phone hidden in the ceiling tiles above his classroom starts ringing. Students obviously hear it, but White continues teaching anyway, grabbing the phone after the class is over.
“The second cell phone figures prominently in his solution. A second email account (by which government officials conduct business) is like that second cell phone.”
Discovering shadow email accounts
Finding out about the second email account to even know to ask about it is about as happenstance as the phone going off in the ceiling. In Memphis, the city staffer was sending press releases from her personal email, which alerted media to ask for any emails about government business on that account.
But what if the requester doesn’t know about the existence of a personal email account used to conduct government business? And who is responsible for reviewing the emails?
Hodge said she hasn’t encountered the issue here, but has seen courts in other states telling the government entity that it needs to review personal email accounts to determine what records might be responsive to a public records request.
She has also seen a court say that the government official needs to go back through his or her personal email and find out what is responsive because of the privacy issue related to others emails in the account.
In one case, noted in this Sunlight Foundation report, an open government group sued the Washington, D.C, council for not sharing public business done on their personal email accounts, leading to a vote to require public officials to only use public accounts to conduct public business.
While I was an editor at The Tennessean, journalists would often request public officials’ emails related to a specific topic or issue. I don’t recall a single time when the response to the public records request included emails from a public official’s personal account such as Gmail or Yahoo.
Perhaps the public officials never used personal accounts to conduct government business. But I also imagine that no one was even checking.
In New Jersey, Gillum reported that The Record of Bergen, N.J. filed an open records request with the governor’s office for emails related to the bridge lane closure, but got nothing. He writes:
“The request specifically sought emails between David Wildstein, a Christie-appointed Port Authority official, and employees in the governor’s office.
“The newspaper received a response from Christie’s office 10 days later, stating that the office ‘reviewed its records’ but did not find any responsive emails. Weeks later, however, emails similar to what The Record asked for were made public after being obtained under subpoena by state Assembly Democrats.
“It’s unclear why the governor’s office didn’t turn over apparently responsive emails from the Yahoo Mail account of Christie’s former deputy chief of staff, Bridget Anne Kelly. She used the service to send messages to Wildstein, who ordered the bridge lanes closed. Representatives in Christie’s office did not immediately return messages seeking comment Friday.”
You can read Gillum’s full AP story here.
–Deborah Fisher, executive director of Tennessee Coalition for Open Government.
Deborah can be reached at firstname.lastname@example.org or (615) 602-4080. Follow TCOG on its blog at tcog.info, through twitter at @TNOpenGovt or on its Facebook page.