“No one should be able to hide communications about government business simply by doing it on a private piece of digital equipment or on a private email account,” says Ken Bunting, executive director of the National Freedom of Information Coalition. (Courts across the country have agreed with him.) But, he says, “Even an agency that’s got an obligation to produce the records may not have access [to private-accounts] to produce the record.”
By mixing work and personal life in this way, though, state employees can put their personal privacy at risk.
Many of the newspapers who had obtained copies of the private emails were struggling with the decision to publish them. The Reporter took a different tact: It obtained new copies of these emails—as public records, rather than leaked documents—through a November records request to the Attorney General’s office. (Unlike the Governor’s office, the AG filled the request.) In the emails provided, though, was information that perhaps should have been held back or redacted. Some of that information was fairly innocuous—records of iTunes purchases, for instance. But some of it was not—the release included an email with one official’s bank information and an overdraft notice.
The Reporter decided to redact the most sensitive information before posting the documents, but to publish even emails that were personal. “If you’re a public official and you’re using your private email to conduct public email, you got to be aware that you give up some privacy rights,” says Schirtzinger.
It’s pretty easy to avoid the issue altogether, though. “You don’t run into that problem if, in the first, place someone isn’t using a private email account to hide public work,” says Bunting, of the National Freedom of Information Coalition. “As a best practice, government business should be conducted on government accounts.”
The Martinez administration may say that it’s following that practice now, but there’s little way to check. The Governor’s office still hasn’t produced any more emails in response to the Reporter’s request, and the governor’s spokesman told the Albuquerque Journal that the office had already produced all relevant records.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.