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Use of private emails for public work sparks FOIA battle

The Santa Fe Reporter is using leaked emails to test the state's FOI compliance
February 13, 2013

In June of 2012, the political press corps in New Mexico acquired a batch of interesting emails written by some of the highest-ranking members of Republican Gov. Susana Martinez’s staff. The emails were being released by Michael Corwin, a Democratic operative who once worked on opposition research for former governor Bill Richardson.

The documents did not cast Martinez’s administration in the best light: They showed administration officials compiling lists of non-union teachers for the governor’s outside political director, moving meetings with lobbyists to locations considered more discreet, and planning fishing trips with industry executives. Many of these emails involved state business–but they were sent from officials’ private email accounts.

Soon, reporters obtained hundreds more emails, all showing public business being conducted from Yahoo, Gmail, and political PAC accounts. Many of the emails came from Corwin, who said he gained access to them through a source who had bought the Internet domain Gov. Martinez used in her 2010 campaign–and all its related contents, including records of emails sent after the campaign had ended from related PAC accounts.

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.

“When the emails came out, we thought, ‘Well, that may explain why we haven’t been getting everything we’ve been requesting,'” Schirtzinger says. That is, she suspected the governor’s office wasn’t including emails from private accounts when fulfilling freedom of information requests.

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This issue is still new enough that some states haven’t even considered it yet: When they have, most, including New Mexico, have said that public officials may use their private emails for work but must treat relevant emails as public records. In a letter to the Governor’s office about the Reporter‘s request, Assistant Attorney General Sally Malavé writes that “all emails relating to public business are public records, regardless of whether they’re sent on private email accounts.”

Months later, the Reporter has received only a single email–one sent from a public account–in response to its request. In August, the paper filed a complaint with the state attorney general, and last week, his office sent a letter instructing the governor’s office to hand over more of the emails or risk facing a penalty of $100 per day–a fine that, with the clock starting “from the day the public body shows its failure to provide a timely explanation of denial,” the Reporter has calculated already totals more than $18,000.

The New Mexico officials’ use of private email is just one example of public servants trying to dodge scrutiny by conducting government business in a digital space they believe is safe from the public eye. Sarah Palin, Mitt Romney, and Louisiana governor Bobby Jindal have all gotten in trouble for it. In Washington, DC, a lawsuit just pushed the city council to stop the practice. Local officials have tried it in Texas and California as well. And while the majority of states have ruled that these private emails count as public records, as the Santa Fe Reporter‘s experience shows, it’s not always that simple to get ahold of them.

“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.

Sarah Laskow is a writer and editor in New York City. Her work has appeared in print and online in Grist, Good, The American Prospect, Salon, The New Republic, and other publications.