Personal e-mail issue begs for clarity
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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