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The Everett Herald reported today that the City of Monroe had agreed to pay over $150,000 to settle a five-year old dispute involving disclosure of public records. According to the Herald, the claimant spent approximately $115,000 in attorney fees to litigate this drawn-out dispute.

The subject of the request was e-mail traffic from and to City officials regarding City Council meetings in March 2005. The City, however, refused to provide unredacted e-mail messages from the home computers of various council members, citing privacy protection exemptions in the Public Disclosure Act. The City also claimed that it was not required to provide electronic copies of the e-mail records.

The City won in Superior Court, but lost in the Court of Appeals Mechling v. City of Monroe, 152 Wn. App. 830, 222 P.3d 808 (2009). The Court of Appeals held that e-mails are “records” – even on a home computer - under Washington’s Public Records Act. The City bears the burden to demonstrate why it could not produce electronic copies of those e-mails, if requested. Indeed, since the Mechling decision in 2009, the Washington Supreme Court has ruled that even the “metadata” contained in electronic e-mails is a public record and must be produced when requested. O’Neill v. City of Shoreline, ___Wn.2d___, 240 P.3d 1149 (October 7, 2010).

The Court of Appeals in Mechling also ruled that e-mail and the home e-mail addresses of council members who sent e-mail messages about City business from their home computers was not protected by the privacy exemptions of the PDA. First, the Court noted that the council members had themselves made those e-mails subject to public disclosure by using their home computers for City business. Second, the Court stated that the privacy protections apply to information in a personnel file, not to information found on business e-mails.

The Mechling case serves as yet another reminder that when elected officials use their home computers for government business, those records – including their home e-mail addresses – become subject to public disclosure.

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On July 16, 2010, the Wisconsin Supreme Court ruled that a public employee's personal e-mails are not public records under that State's Public Records Law. Like Washington, Wisconsin has broad public disclosure laws. Or, as noted by the Supreme Court, "[i]f Wisconsin were not known as the Dairy State it could be known, and rightfully so, as the Sunshine State." But, the Court held personal e-mails "are not a part of government business," simply because they may be sent or received on a Wisconsin local government's e-mail and computer system.

This holding is similar to (and cites) a Washington Court of Appeals decision, Tiberino v. Spokane County, 103 Wn. App. 680, 13 P.3d 1104 (2000). There, the Washington court held the personal e-mails were "public records," and excessive personal e-mail use was a reason for discharge of a government employee. However, the personal e-mails were exempt from disclosure under Washington law. While the fact of excessive email use is of legitimate public concern, the actual content of the personal emails was not.

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Emails allow an increased level of public access to government decision-making because many issues are resolved in email exchanges that 20 years ago would have been addressed in person or over the phone. These same emails, however, sometimes reveal embarrassing information.   Example A:  the scandal related to South Carolina Governor Sanford's affair.  For more see the posts on the Death by Email blog. 

Not surprisingly, the newspaper that broke the story, the State, has made an extensive public records requests to the Governor's office. What is surprising, however, is that some of the more recent embarrassing emails show media outlets pledging support for the governor when the stories first broke that he had gone missing: Great Call: In Emails To Sanford's Office, Right-Wing Media Dismissed Missing Gov Story

It's not uncommon for members of the public unaware of the scope of the public records laws, to be embarrassed when their email to their elected official is made public.  But this is the first example I've seen of the media being embarrassed because they forgot about the public records laws.

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When the U.S. Forest Service was considering whether to fire whistle-blower Glen Ith back in 2007, its ethics chief was keenly aware that his emails on the topic were public records, subject to discover.  His solution?  Instruct all recipients to destroy the emails:

This information is for your eyes only.  Please destroy after reading.  It's not protected by privilege and is subject to discovery.

Melvin Y. Shibuya
Chief, Labor/Employee Relations Branch

He repeated similar warnings in subsequent emails. 

Here is a link to an article that includes these excerpts from those emails.

Justice has prevailed, at least sort of.  Mr. Ith died of a heart attack while on administrative leave, after his job was "downsized" but his widow was recently awarded all of her litigation cost.  

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