The private life of e-mail: the digital age has complicated the definition of what's a public document.

• Author: Greenberg, Pam

What's public some of the time, private some of the time, and potentially confusing almost all of the time?

If you're a state legislator, it's probably your e-mail.

Consider this scenario. You're at your desk on the House floor, thumbing through e-mail messages on your personal BlackBerry. One message is from your wife, asking if you will be at parent teacher conferences. Another message is a BlackBerry "PIN" message from a lobbyist, explaining her position on a bill coming up for a vote. On the desk in front of you is your state-owned laptop, which displays messages from constituents in your state e-mail account. Another window on the laptop is opened to your private Yahoo e-mail account. In yet another browser window, your Facebook page is open, showing the messages you've sent to your friends, constituents and legislative colleagues.

Which of these communications is a public record? Which messages will you save, and which will you delete? The answer can depend on the state you live in, the content of the messages, court rulings and how your state's constitution is written.

Openness and transparency in government are essential democratic principles that foster accountability, promote the public trust and prevent abuses by those in power. But there are important privacy interests and fundamental constitutional doctrines that require a careful balancing act when considering public records laws. E-mail and new technologies create added complexities and challenges to the debate.

WHAT'S PRIVATE?

In six states--Colorado, Delaware, Montana, New Jersey, Rhode Island, Texas-statutes specifically address whether legislators' e-mails are considered public records. In most of these states, the laws are the result of a balancing act between the public's fight to know and an individual's right to privacy.

In Delaware, the balancing act surfaced earlier this year when the General Assembly considered amending the state's Freedom of Information Act. The bill brought the legislature under the same public records and open meetings provisions that applied to other government officials and agencies. The bill was at risk of failing because some lawmakers felt legislators' e-mails should be kept private.

"One of their biggest concerns was that we have so many e-mails from constituents talking about sensitive problems, problems with health care, and some are very descriptive," says Delaware House Majority Leader Peter C. Schwartzkopf. "We support open government and the public's right to know, but quite frankly, constituents bare their souls to us sometimes. When it comes to private conversations, there's a difference between need to know and want to know."

That does not mean, however, that the e-mails are protected in criminal proceedings or investigations of wrongdoing, he says.

In a blog posting about the Legislature's public records law, former Utah Senator David L. Thomas described another reason why some legislators want to keep their e-mail correspondence private. "Citizens have a right of privacy in personal and confidential correspondence, without which their constitutional right to petition their government would be negatively affected," he says. "No right to privacy means no whistle-blowers. Citizens want to feel secure in contacting their elected representatives without the fear that someone is spying on them."

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But open...