Kauai blogger Andy Parx (Got Windmills?) made an interesting comment in the discussion of the email from City Councilmember Tom Berg. I had clarified that the email came from a private email account and not his official council email. Andy responded:
I don’t think it matters if it was sent from a private email account- if it touches on the council’s business it is a public record.
Here’s why I don’t agree.
Hawaii’s law governing access to government records is found in Chapter 92F Hawaii Revised Statutes.
Here the statute’s deceptively simple definition of a “government record”:
“Government record” means information maintained by an agency in written, auditory, visual, electronic, or other physical form.
In a booklet providing guidance on the UIPA, the Office of Information Practices further explained:
OIP has interpreted “maintained” to mean information physically possessed or administratively controlled by an agency. An agency has administrative control over a record where it has the right to gain access to the record. For example, where an agency contracts with a private company and has the right to review the records held by the company under the contract, those records would be considered government records.
So back to the case of an email sent by a Hawaii official from a private email account. Is it a “public record?”
It doesn’t appear to fall under that definition of information “maintained by an agency” and therefore subject to public disclosure.
I’m guessing that may not be the end of the story. I hope readers will pile on with additional references.
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Has Berg himself weighed in?
Not on this question.
Ian,
Let me first say that I ain’t a legal eagle, but for whatever it’s worth, see:
1. Per Findlaw, private email resides on multiple sites, for the best expectation of security they recommend encryption,
http://public.findlaw.com/internet/email-privacy.html
2. From the U.S DOJ:
http://it.ojp.gov/default.aspx?area=privacy&page=1285
Anyway, I couldn’t find anything restricting use by receivers of email, yet….
Have a nice weekend!
It could be an agency record if Berg sent it from the Council office on a government computer and there is a record of it there. Otherwise your analysis is spot on.
Could be but if was sent from a webmail account (Yahoo!, Gmail, etc.) and the email is accessed by but not stored on a government computer, I don’t think it’s been “maintained” there as OIP has construed that term.
I do not believe all correspondence from a legislator should be available for public inspection. I email legislators all the time with my thoughts on legislation and I believe it is up to us is decide whether to respect the confidentiality of our exchanges. If we are allowed to have confidential discussions in the flesh or over the phone, I do not understand why email conversations deserve less confidentiality.
At a common sense level (of course, the preferred one!), I don’t disagree but once a conversation is reduced to static form (a transcript if sorts) and preserved somewhere, it becomes a record of some kind and the discussion above aims to determine whether that record should be public or private.
What you say makes sense, but at the same time, it’s a big assumption for Mr. Berg to state that it is confidential without any prior agreement from the email’s recipient.
Didn’t work this time.
Please don’t confuse the two issues.
One issue is the status of his “confidentiality” statement contained in the email.
I think the clear weight of opinion is that it has no legal or moral weight when used like this in an unsolicited email.
A separate question is whether it would be considered a public record. In my view, it would not. But that isn’t a consideration in whether or not it can be freely quoted or published, since it was sent to me by the author. I don’t have to request access to it as a public record.
So you are correct. I don’t consider it confidential. But, at the same time, it wouldn’t be considered a public record.
I agree the email is not confidential and that Tom likely had that phrase included as a standard caveat.
Based on the information from the OIP, I would also agree that the record appears not to be public.
There was a question on Civil Beat recently about who’s meeting with councilmembers and whether calendars or appointment books are public records. It’ll be interesting to see what they find out about that.
Let me help with Berg’s own words to us on his staff. He instructed staff on multiple occasions to use non-City e-mail whenever possible. These “personal” e-mail addresses, which include tomberg00@yahoo.com and edsunrise@aol.com as well as all staffers’ personal e-mail addresses, were routinely used to conduct City business within “Team Berg” as well as with other City agencies, departments, and private individuals and entities… Make no mistake, Berg himself demanded the use of personal e-mails as much as possible . . . as well as the use of personal (non-City) computers. [edited]
Perhaps I used a misleading term in saying “public record.” My thought is that once you make a public statement or distribute a message to the general public you can’t put that toothpaste back in the tube. Once something- printed or verbal- is publicly distributed it becomes a “public record.” I wasn’t thinking in terms of the record itself but the content. And of course I was speaking of a matter either before or likely to be before the board in question.
Tangentially this points to what I’ve said for years is a huge loophole in the sunshine in that the prohibited communications provisions can be evaded by simply making a public statement. Communicating between more than two “board” members is prohibited (except under some strict circumstances) yet if a board member were to make a statement carried in the media- or distributes it in a widely disseminated email as in this case- (s)he has, in essence, communicated with all the other board members. If others answer in the media it should, by all rights, violate the serial communications prohibition. It makes for an absurd little dance, similar to the current “non-coordinating” prohibition between presidential candidates and SuperPACs.
So is a verbal or written statement to the media a “public record” by virtue of the fact it was made public- especially if it reveals a non-public matter? OIP has been reluctant to clarify this.
I’m pretty familiar with the sunshine law, but I hadn’t heard this phrase, “serial communications prohibition,” before. What is the prohibition?
googled and found this:
http://ilind.net/2008/01/03/sunshine-rulings/
Interesting. Thank you.
The “serial communications” prohibition from OIP is that you can’t aviod the “more than two” prohibition via a third party or by passing the information down the line so everyone knows without actually talking together in one room.
http://www.state.hi.us/oip/opinionsummaries/opinionsummary%2005-15.html