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 Email and public officials: That itís the substance of the record that counts

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Email and public officials:

That itís the substance of the record that counts and not how it was created,"

D.C. Joins States Grappling with Public Access to Officials' Personal E-mail Accounts

A lawsuit has placed the District of Columbia among a growing number of state and local governments wrestling with requests for public access to e-mails sent to or from officials' personal accounts.

The lawsuit (PDF), filed yesterday in District of Columbia Superior Court, challenged the D.C. Council's denial of a freedom of information act request for e-mails sent to or from council members' personal accounts related to public business. The plaintiff, the D.C. Open Government Coalition, alleged that the council is in violation of the city's own FOIA law.

Kenneth Bunting, executive director of the National Freedom of Information Coalition, said similar disputes are playing out in courts and legislative bodies across the country. To date, he said, the bulk of case law and policies have favored basing public access on content, and not ownership of an e-mail account or other technology. "If it's public business, it's public business," he said.

Most recently, Bunting noted that the Supreme Court of the State of Alaska ruled on October 13 in favor of public access to private e-mails that dealt with state business. That case stemmed from the fight over access to e-mails sent to or from former Alaska governor and vice presidential nominee Sarah Palin.

Laura Handman, a partner at Washington's Davis Wright & Tremaine, said that given the blurring of boundaries between work and personal life, especially for elected officials, a number of state and local governments have recognized that public records should be determined "by subject matter and what you're doing and not from where you're doing it."

In the complaint filed in the District, which was first reported by The Washington Post, the coalition alleged that the council unlawfully denied its March request for e-mails from the past 60 days related to public business that were sent to or from council members' non-governmental accounts.

Noting that a January opinion from the council's Office of General Counsel stated that at least one unidentified council member had used a private e-mail account, the group alleged a single violation of the city's FOIA law. "The Councilís position that records of some public business may be hidden from view by Council members is contrary to the legal requirements of FOIA, and also raises serious public policy concerns," the group argued in its complaint.

The council, in the January opinion from the general counsel's office, maintained that it wasn't required to produce the e-mails because they werenít in the possession or under the control of the council at the time. The open government group countered in its complaint that the records were in the council's "constructive control or possession because they are within the control or possession of Council


James McLaughlin, co-chair of the D.C. open government groupís legal and enforcement committee and associate counsel at The Washington Post, pointed to at least seven states Ė New York, Pennsylvania, Ohio, Florida, Illinois, Wisconsin and Alaska Ė where courts or attorneys general had found in favor of public access under similar circumstances. He was aware of only one state, Indiana, where a court had ruled otherwise.

"The clear trend overall has been in favor of the position that we're advancing: That itís the substance of the record that counts and not how it was created," he said in a phone interview today.

The open government group is represented by Chad Bowman of Levine Sullivan Koch & Schulz in Washington. A spokesman for the D.C. attorney general's office, Ted Gest, declined to comment.

The case is before Superior Court Judge Laura Cordero. An initial scheduling conference is scheduled for January 18.

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