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State Supreme Court Says Business Emails On Private Accounts Are Public Records

By | October 12, 2012 - 11:30 am

Boxes of emails from the first release of former-Governor Sarah Palin’s emails during her time as governor. Photo by Casey Kelly, KTOO – Juneau

State employees can’t use private e-mail accounts to hide their work communication from public record laws. The State Supreme Court issued a decision on the matter on Friday, that largely affirms an earlier Superior Court Ruling. The case dates back to the Sarah Palin Administration and addresses the tricky question of whether the state records law is keeping up with communication technology.

Citizen activist, Andree McLeod originally sued the state in 2008, after she discovered Governor Palin was using a Yahoo account to conduct state business. McLeod wanted the court to make it illegal for state employees to use private e-mail accounts for work. And said if they did, those e-mails should be preserved for the public record.

The Supreme Court agreed private e-mails regarding state business should be part of the public record. And McLeod’s Attorney, Donald Craig Mitchell calls the decision a victory.

“All in all, I think this is an important development for vindicating the public interest in Alaska during the new telecommunications, e-mail age,” Mitchell said.

But the court did not agree with McLeod that state employees should be barred from using private e-mail at all for their work. Mitchell says that’s unfortunate. But he says the point may not matter given that Governor Sean Parnell has ordered any state business conducted on private e-mails to be copied to the state e-mail system so it can be preserved.

Dave Jones is an Assistant Attorney General with the Department of Law. He says the state is pleased with the court’s decision, which he says can be boiled down this way:

“What really determines whether something is a public record is its content not the means through which it’s transmitted,” Jones said.

Jones says in principal, the Supreme Court’s decision would also apply to text messages. A former state employee has accused the Parnell Administration of using text messages to hide state business from public records requests. Jones says he doesn’t know whether employees are engaging in that practice, but they shouldn’t be.

“Most text messages are by their nature going to be transitory, that is not something that is not appropriate for preservation,” Jones said. “But a state employee could not try to avoid the effects of the public records act by using a text message as a substitute for a public record.”

But Andree McLeod’s attorney, Donald Craig Mitchell, says even if the intent of the Supreme Court’s decision is clear, the public records law needs to be updated. He says state law on the issue hasn’t been revisited in more than two decades. And he says that means there’s a lot of confusion over how state employees should be using new communications technology.

“If anything comes of this, I hope it would be the legislature stepping up to the plate and reviewing this entire area and making some adjustments to the Alaska Public Records Act that would bring that act into the 21st century,” Mitchell said.

Senator Hollis French, an Anchorage Democrat, agrees the law may need some tweaking.

“The question is are we collecting those private e-mail accounts? Are we collecting text messages? Are we collecting new modes of communication? Facebook messages for example. How do we make sure that those get pulled into the permanent public record files so the citizens are sure their business is being done appropriately?,” French said.

He expects lawmakers to take a look at the law during the next legislative session.

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