Opinion: Using personal email makes public business private

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By Gwyneth Doland

— Here in New Mexico we’re very lucky to have excellent laws that guarantee your right to know what your government is up to. The Inspection of Public Records Act was designed to ensure, as its authors wrote, “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.” But IPRA dates from 1994, when only a small fraction of us had computers on our desks at work. How things have changed!

These days it seems almost everything we do is processed electronically at one point, and that includes most of the business conducted by public officials and employees. But when officials use their private accounts to conduct public business, that promise of transparency is clouded. That’s because the rank-and-file employees charged with responding to public records requests have no way of easily retrieving public records that might be lurking in their bosses’ private accounts.

Devotees of open government in New Mexico have always known that public record is a public record no matter where it is physically located—whether a report sits in a filing cabinet in the office or in an employee’s briefcase at home, for example.

But today we all have fewer pieces of paper in filing cabinets and briefcases and more documents sitting in our laptops, phones and in the cloud. But the principle of open government remains the same: to ensure, as the Inspection of Public Records Act states, “that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.”

Lately, folks have been asking us about the details of email and how it should be treated in terms of public records requests. So we sat down and agreed on some points:

First, if a document sitting in a public official’s desktop computer at work qualifies as a public record under the definition in IPRA, then it’s still a public record when it’s stored on that official’s personal laptop at home. Similarly, a public record sent or received by email is subject to inspection under IPRA no matter what kind of account—official or private—is used.

This applies to everyone who creates public records in the course of doing public business, including public employees, volunteer members of boards and commissions, and unpaid elected officials such as state legislators, city councilors and school board members.

Just as records custodians are responsible for documents that may not be in the right filing cabinet, they are also responsible for public records held in private email accounts belonging to members of that body.

But because storing public records in private email accounts can make it hard for records custodians to access those records, the New Mexico Foundation for Open Government strongly recommends that all emails related to public business are sent using official accounts.

Let’s keep all public business public—not private.

Gwyneth Doland is the executive director of the New Mexico Foundation for Open Government, an independent, nonpartisan, nonprofit member organization that has worked for more transparency in New Mexico since 1990. To learn more, visit nmfog.org


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