PaFOIC

Opinion: No blanket exemption for email on personal account

January 28, 2010 | Filed in: PNA Legal | Opinion | Open records | Email

From the PNA Legal Hotline

By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: I requested access to e-mails sent between council members and the mayor of a local agency. The agency denied my request on the basis that the agency does not provide e-mail accounts to council or the mayor, and the e-mails are sent from personal e-mail addresses. Can they do that?

A: No. Any blanket denial for these types of e-mails is contrary to the language and intent of the Right to Know Law. If the e-mails document or relate to agency transactions or business, they are agency records subject to access pursuant to the Right to Know Law.

The definition of “record” in the Right to Know Law is very broad and includes information that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of an agency. If the content of the e-mails deal with agency business, the agency has the burden make them public, subject to any applicable exemptions in the law.

For instance, section 708(b)(6) of the law allows agencies to redact personal email addresses from public records. In this case, the personal email addresses of council members and the mayor may be redacted but the content of emails that deal with government business, if otherwise public records, must be produced.

If the agency does not offer public e-mail accounts to council members and the mayor, agency policy should be very clear that any government business transacted or relating to agency business on personal property is subject to public access via the Right to Know Law. The public will be denied accountability and the intent of the Law would be thwarted if government agencies could avoid providing public records by instructing or allowing government employees to use personal communication equipment to conduct government business.

The Pennsylvania Office of Open Records has ruled on this issue several times and always in favor of access. Visit the following links to read the Office of Open Records’ Final Determinations related to this issue:

Pennsylvania Newspaper Association attorneys provide member newspapers with advice on government access issues.