The public life of e-mail: states need to decide if lawmakers' e-mails constitute a public record. Court cases are forcing the issue.

• Author: Greenberg, Pam
• Position: Brief Article

What's in a word? Or, more importantly, what's in the e-mail people use to chat incessantly across the Internet?

Plenty, say news organizations campaigning to make lawmakers' e-mail a matter of public record.

Four news groups have sued Utah Governor Mike Leavitt, saying he is illegally destroying his e-mail messages. The governor claims many of his e-mails are personal, which would exempt them from the public records law. But a Salt Lake newspaper requested the messages be released for the six-week period when the state's voting districts were redrawn. The newspaper is seeking access to messages that would fall under the public records law, which states that "correspondence ... in which the governmental entity determines or states an opinion upon the rights of the state, a political subdivision, the public, or any person" are normally public. The matter has ended up in court.

In Indiana, the question of e-mail has stymied legislation on open records until the 2003 session. The General Assembly passed a measure that would have let lawmakers decide which of their records could be made public, but the governor vetoed the bill. The importance of the electronic messages was emphasized when an Indianapolis newspaper sought access to legislators' e-mail last year. During the 10-week 2002 session, House leaders and news organizations argued about whether lawmakers' mail and e-mail should be open to the public. Lawmakers insisted that it should be private to protect constituents who expect their personal correspondence to be kept confidential; media groups claimed the exemption was too broad.

Nebraska news organizations consider e-mail a public record, which means the messages should be available to anyone requesting them. Nebraska law states that information considered a public record in its original form is also a public record when maintained in computer files. However, when a district court judge ordered the state to produce e-mail about Nebraska's fight against a nuclear waste dump, officials said many messages had been deleted. The back-up tapes that should have contained the e-mail were subsequently taped over with other data as part of the recycling process in place in the secretary of state's records management division. The division is now setting up a formal...