Are politicians’ private emails, texts public record?

Published 12:33 am Saturday, June 4, 2016

Way back in January, presidential hopeful Sen. Bernie Sanders nailed it in a debate.

“The American people are sick and tired about hearing about your damn emails,” the senator said to former Secretary of State Hillary Clinton.

I, too, am sick the topic, which the FBI is said to be investigating. If you aren’t tuned in, Clinton stored all of her emails on a private email server while serving as secretary of state. At issue, according to most news accounts, is whether the nation’s security might have been compromised at issue as a result.

But also at issue, not only with Clinton, but all across America, is how digital communications should be preserved as they become subject to open records rules, also known as government transparency.

The Alabama Press Association was asked to explore this and other digital communications issues after a member newspaper was met with flat refusal to comply with an open records request. Basically, the government’s response was, “So sue me.”

As we began to explore the issue, we learned last week about Alabama rules suggested by the State Records Commission and Local Government Records Commission. E-mail records are considered public records just as any other document created by a government employee in the course of conducting public business (Code of Alabama 1975, Section 41-13-1).

Most anyone who uses good logic could agree on that. But where it gets a big more dicey is in the use of a private email account to conduct business. A part-time elected official would, understandably, feel that an email sent to or answered from his or her personal account is personal. Not necessarily so, says the Commission. The same Section of the Code says that content determines whether or not a record is a government record, not format or the machines or e-mail accounts used to create the document.

If content determines public record, then a text message exchange – whether via private or government-issued phone – also would become a record. Good luck accessing those.

While it is the opinion of the State Records Commission that Alabama law addresses this issue, the same is not true across the nation. According to the First Amendment Coalition (FAC), the legal status of government-business emails sent from a personal account is the subject of an ongoing lawsuit that is headed to the Supreme Court. Because those records would be so difficult to access for open records issues, the FAC suggests government officials who use personal accounts “cc” their official accounts while conducting business so as not to run afoul of the law.

When I think of all or our country’s history that’s been recorded by historians and authors reading correspondence written by and to their subjects, I ponder what we might never have discovered had the founding fathers had digital technology.

Perhaps we should care more about Hillary’s emails, after all.



Michele Gerlach is publisher of The Star-News.