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Personal e-mail issue begs for clarity
Heath Haussamen
Whether personal e-mail accounts should be used for public business and whether such e-mails are public record are issues that beg for clarity. I’d accept a legislative solution or, if anyone wants to take this issue to court, a judicial solution.
Martin Esquivel is a N.M. Foundation for Open Government (FOG) Board member, a media law attorney, and a 2006 recipient of FOG’s Dixon Award for championing open government.
He’s also an elected member of the Albuquerque Public Schools Board of Education who uses his personal e-mail address as his APS contact.
That means Esquivel falls into the category of public officials who are using personal e-mail to conduct official business but, I asserted earlier this week, should instead use official e-mail accounts so there’s no question they’re creating records that are subject to the state’s Inspection of Public Records Act (IPRA). I talked with Esquivel about it, and he believes the situation is more complicated than that.
First off, Esquivel said he wanted to make clear that he’s not trying to hide anything by using his personal e-mail account. He said it’s “purely a matter of convenience” – he’s trying to avoid having to juggle too many accounts.
“There’s really nothing nefarious about it,” Esquivel told me.
He said APS staffers send him notices of events and schedule meetings. They contact him using government e-mail accounts, so e-mails to and from them would turn up in response to a records request to APS for his e-mail. He told me those are “clearly a public record.”
What about other APS-related e-mails? Esquivel isn’t the only APS Board member to use a personal e-mail account. In fact, it’s not uncommon among local elected officials throughout the state. APS spokesman Rigo Chavez told me board members may communicate with constituents using personal e-mail but they’re not discussing business that might show up on a meeting agenda with each other because they’re aware of the need to avoid rolling quorums that would violate the N.M. Open Meetings Act.
‘Similar to a verbal or telephone conversation’
Esquivel told me he wanted to make clear that he doesn’t know APS Superintendent Winston Brooks’ private e-mail address and isn’t communicating with him secretly.
But there’s no doubt Esquivel communicates with constituents, and at least occasionally with other APS officials, about official APS business using his personal e-mail account. He said that’s “similar to a verbal or telephone conversation.”
That sounds a lot like what Gov. Susana Martinez’s spokesman Scott Darnell was quoted by the Albuquerque Journal as saying after e-mails showed that Martinez and others in her administration were using e-mail to discuss official business.
“There is no law that prohibits the use of personal e-mails, but there are regulations that govern which e-mail messages are public record and which are not,” the Journal quoted Darnell as saying. “Like the majority of legislators and other officials throughout the state, we occasionally communicate on personal e-mails when those communications are not considered public records.”
“These are the types of conversations that are in lieu of oral conversations,” he said. “Those oral conversations would not be recorded and preserved, and that’s why state regulations do not require that these e-mails be maintained.”
Esquivel said the difference between what he is doing and what Martinez did is intent. While his use of personal e-mail is for convenience, he accused the administration of using private e-mail accounts to avoid IPRA. He said that’s what was so concerning to FOG about the Martinez administration’s actions.
‘IPRA has not caught up with our electronic age’
Esquivel said he has no problem turning over constituent e-mails sent to his personal address.
“I don’t consider myself a records custodian, but the way I look at it, if Mr. and Mrs. Smith send me an e-mail complaining about the operations at a middle school, is there any expectation of privacy there? I don’t think so,” he said, though he added that one person who feared retaliation was recently upset with him for passing on a complaint to an APS administrator.
Esquivel’s response points to a problem. He doesn’t consider himself a records custodian. Then who should a request for those e-mails be directed to? Lack of clarity on how to obtain records is a stumbling block to requests for public records. It’s one reason I believe public officials should use public accounts for communications related to their public positions.
Esquivel said a legislative fix is needed.
“I’ve been maintaining for the last 10 years that IPRA has not caught up with our electronic age. It was not written for electronic databases and e-mails and everything else,” he said. “So there are going to be some kinks.”
‘The way we converse now’
Another “kink,” according to Esquivel, is what to do about text messages. When they relate to public business, they are arguably records that meet IPRA’s definition of documents that must be maintained and, unless they meet an exemption, made available publicly. But text messaging is “the way we converse now,” Esquivel said, “and, “If I converse with another board member, that’s not necessarily a public record. No one could force me to go back and document the conversation.”
“Does the fact that it’s in electronic form, text messages, change that?” he asked.
The same question could be asked about e-mails that Darnell and Esquivel maintain are sent instead of having an oral conversation.
FOG has urged other government agencies to follow Martinez’s lead and require all government employees to use official e-mail accounts to discuss official business. And the Attorney General’s Office weighed in two years ago, stating its opinion that the Las Vegas mayor’s e-mails related to public business were subject to IPRA regardless of whether they were sent or receiving using a public or personal e-mail account.
Esquivel said the idea that e-mails sent to and from his personal account that relate to APS business are or should be subject to IPRA “merits consideration.”
“I hadn’t really given that much thought, in terms of preserving those as public records,” he said.
This from one of the most prominent transparency lawyers in the state. Clearly, the e-mail scandal that has dogged the Martinez administration and spread beyond in recent weeks has caught lots of people off guard.
Legislative or judicial clarity needed
I believe electronic records such as e-mails and text messages already fall under IPRA’s definition of public records, which is “all documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained (emphasis mine).”
You know what that means? If a government employee or official records a verbal conversation, even though he or she is not required to do so, it’s still a record that must be maintained and released publicly unless it qualifies for an exemption to IPRA. Why would an e-mail or text message be any different?
I don’t really see the gray in the situation that Esquivel does. Still, based on all the disagreement on this issue, I agree with his assertion that the situation begs for clarity.
“Clearly IPRA was not written for this age. And we’re going to have to rewrite it, revisit it and make sure it catches up with the times we’re living in,” Esquivel said.
I’d accept a legislative solution or, if anyone wants to take this issue to court, a judicial solution.
Martinez has already signaled a willingness to work with lawmakers on this topic. Her statement directing employees under her authority to use official e-mail accounts also states that she “would be pleased to work with interested parties to ensure that our records statutes and regulations are coherent, strong, practical and consistent across government.”
House Minority Leader Tom Taylor was quoted in the Albuquerque Journal today as endorsing the creation of a policy on lawmakers’ use of personal e-mail accounts, because none currently exists. I hope he and other lawmakers will also be proactive about resolving this issue for all government employees and officials in New Mexico, not just legislators, by clarifying IPRA.
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Why should anyone who does know him, trust him?
In early 2007, the Journal reported on public corruption and incompetence in the APS Police Department, a publicly funded, private police force. According to the Journal, link, money was moved from evidence to petty cash and then spent without recording keeping; a felony. According to the same article, criminal background checks were done to harass whistleblowers; a felony since it was an NCIC check. No charges were ever filed
Three investigations were done, all by APS itself. The Police force invested it’s own corruption.
The findings of all three reports are public records. APS will not surrender any of them, even after redaction. APS is spending operational dollars (dollars that could be spend in a classroom if they weren’t being spent on litigation) to keep the findings secret from public knowledge. The simple proof is to ask APS Rigo Chavez for the findings of investigations into corruption in their police force and see what you get.
APS Supt Winston Brooks is APS CAO. Unless the board wants to admit to undo influence over Brooks, it is Brooks decision, ultimately, to hide or surrender the findings.
During the time Brooks is hiding the Caswell Report and other findings, Marty Esquivel and Journal Editor Kent Walz (also a FOG Board Member) gave Brooks a Dixon Award for being a hero of transparency.
Mr Esquivel’s intentions I think, are to ferret out public records when it suits him, and hide them when that does.
The legislature need not tinker with IPRA on issues that are well established, no matter how widely misunderstood and by whom. Education of public officials, which several recent e-mail controversies has deepened, is what seems to be needed, Kudos to Heath for sticking with this.
Jason Marks, PRC Commissioner appears to correctly state the matter of whether government business conducted through an official’s private email accounts is subject to public inspection under IPRA, period. The public’s business is the public’s business. His post here also wisely distinguishes between the issues of (1) what documents are public records and (2) which/how those records are to be maintained.
The matter of whether an email is a public document subject to IPRA was addressed head-on in the two-year old AG King opinion refered to in Heath’s article: officials emails “without regard to the account he used, were publc records subject to disclosure if they related to and discussed public business.” Now an AG opinion is just that: an opinion. It has weight but does not establish law itself even though it is about interpretation of the law.
In light of the AG Opinion and the direct quote Heath brings forward from IPRA, I believe confusion by any official on this issue should not exist. I am not an attorney, but I do practice advocacy for what I consider good government. This is why I sit on the FOG Board. I encourage my fellow FOG Board members who happen to be officials as well as good government advocates to eliminate any possible negative appearances by always erring on the side of transparency whenever the opportunity arises. I applaud Mr. Esquivel for pulbicly addressing this issue through an open interview. I believe Mr. Esquival about his good intentions, but why should anyone who does not know him trust in the School Board member personally? Complete transparency is the good-government answer.
The Governor’s pronouncement that public business should be conducted by executive agency employees over public, not private, email addresses is good news that brings her offices to now do what they should have already done in practice. Now, let’s hope she expands this to also cover appointees to State Boards and Commissions. Similar, widely inclusive policies or directives would be nice to help educate officials and the public about IPRA as it now stands. Even better: let’s see all official and employees at all levels of government open up, transparently, in all their public practices.
require all government employees to use official e-mail accounts to discuss official business
This seems like a very good idea.
There’s the idea of the office holder, and there’s the idea of the person. When Guillame is writing, he may be writing as officeholder, or as an individual, or as the holder of a different office. Consider Trustees or agents. When someone is acting as a Trustee, or as an agent, good practice says to always introduce yourself and sign everything as “Guillame, Trustee” or as “Guillame, Agent for …. .”
Similarly, in order to be clear about when a person is acting as an officeholder, good practice says they should sign as themselves and the name of their office, and use official channels that are given to that office holder. Just as we want judges to make decisions from the bench while wearing silly robes (so we know they are acting as judges), we should expect all government agents to be clearly identified when they are acting in their governmental capacity and to use official channels.
Why not write new laws on transparent accountability in government?
Why not start from scratch and do it right?
Why not make government now, as transparently accountable to the people as it will ever be?
Why can’t interest holders, like the FOG for example, re-write the law and make it an issue in November? Voters could hold them accountable during the election, for their capacity and willingness pass the law.
Every legislative session begins with weeks of idleness. Those weeks could be filled passing new public records and open meetings law. They could be spent putting teeth in governmental oversight.
Why not?
What is the connection between the New Mexico Treasurer’s Office and the New Mexico Secretary of State’s Office during the time of Mary Herrera you ask?
LOL! Do the request and let’s all find out!
Heath,
While our current laws might benefit from modernization, as you point out there are plenty of pre-internet analogies to the situations that are arising with emails and text messages. For example, a member of a part-time board or commission does work from home, sending snail-mail letters about a project of the board to the board’s consultant, do those letters somehow become non-public documents simply because they were sent from home and not the office? Or how about an official who takes documents home to read, do they become exempt from IPRA just because they’re not in the office when the IPRA request came in? We can see that the content of the document, as well as whether it is in the possession of public agency or public employee in his/her official capacity, determines whether a document is a public document.
A lot of the confusion we are seeing right now comes from a failure to separate the two aspects of state records law:
*Inspection of Records
*Maintenance/Retention of Records
Basically, as you and others point out, a document becomes a public record subject to IPRA when it pertains to official business and it is either created, received, or in the possession of a public official/employee. Use of a personal email address does not affect whether a document sent or received by a public official is a public document. It does make it harder (if not impossible) for a state agency records custodian to respond to IPRA requests, and thus should be avoided for official business for that reason. When an official receives a communication pertaining to official business at his/her personal email address, it is best to forward it on to the official’s government email address for response or further action. (Conversely, personal or partisan political email that inadvertently comes to the government email address should be forwarded to the employees personal email address and deleted from the state system.)
But it must be noted that the law does not require all public records to be retained. Text messages which are never final documents of official actions and almost always transitory informal communications are not required to be retained by state law. Similarly, many (if not most) emails are not required to be retained. For example, the 20+ emails I receive daily that are industry newsletters, advertisements for conferences, and similar mass emails are indeed public records, but the law doesn’t require me to save them or have a records custodian save them. Similarly, the law didn’t require me to retain draft versions of final paper documents. But in all these cases, if the public agency happens to keep such documents that they weren’t required to keep, they are subject to production in response to an IPRA request. Conversely, there is nothing wrong with an official/employee clearing out their email inbox of non-permanent records and deleting text messages prior to receipt of an IPRA request.
In summary, rather than needing a legislative or judicial “fix,” existing law covers the emerging issues of internet/smartphone era. What is needed is more clarity and guidance to state agencies in applying the law to these technologies, and this could be accomplished by the Attorney General through expansion of the AGO’s IPRA guide.
Kudos for taking on this crusade Heath! Your doggedness and tenacity on this front will make NM a much better place to live someday…and, when that day arrives, your determination on this front will be duly acknowledged.
“First off, Esquivel said he wanted to make clear that he’s not trying to hide anything by using his personal e-mail account. He said it’s “purely a matter of convenience” – he’s trying to avoid having to juggle too many accounts.
“There’s really nothing nefarious about it,” Esquivel told me.”
This really isn’t rocket science here…it’s just a matter of good government…pure and simple.
First off…Mr. Esquival, Esq…this “matter of convenience” argument is pretty thin…you ran for the office, were elected by the constituents, now be a good public servant, abide by your oath of office, and do what it takes to keep official business email official and private email private…a no brainer here, really Mr. Barrister. If this is too “inconvenient” for you, then consider bailing out and making room for someone who really cares about good government….ditto re: your board membership on FOG.
NM Legislators….SEE ABOVE.
Of course the best fix for the Legislature is to amend the constitution to allow for a full-time salaried legislature that meets year round with the following term limits: 2 four year terms for senators= 8 years; 4 two year terms for reps = 8 years.
PROS: Will help de-institutionalize corruption; Enable regular everyday folks with genuine motivations who really desire to make a difference run for office and get elected; this will keep the usual suspects of lawyers, retired state employees, insurance company execs, political hacks et al from always running cuz they don’t need to have year round jobs like the rest of us schmucks. Also, everyday folks typically don’t have the obligatory political ax to grind that many of the hacks do.
CONS: None.