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'It's Personal': The Legitimate Exclusion of E-Mail and Phone Records from Disclosure Under the Public Records Law
by Eric E. Hartwell
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Ask 10 municipal officials if all the material on their office computers is public record, and you may get 10 different answers. For the most part, many officials tend to err on the side of caution, concluding that each item is a public record. This response is indicative of a lingering misconception among many that virtually all information in city hall somehow represents a record that must be offered up for inspection under the public-records law.
A good example of the overly broad approach to record disclosure was revealed the other day when a city attorney called to advise that his manager had decided to throw open the doors of a vacationing employee’s office to satisfy a request for “records” on a given matter. The city attorney and I both cringed at the thought of giving full access to a city official’s personal office space, effectively authorizing a fishing expedition through the official’s office. However, this incident underscores the need for clarification about personal records that need not be made available for inspection versus public records that do fall within the sweep of the public-records law.
An interesting area in which personal records issues arise includes e-mail and cellular telephone records. This article focuses primarily upon the records contained in or generated by electronic media such as personal computers and devices such as cellular phones.
In two recent opinions, Florida courts have articulated a range of privacy for the personal material of public employees and officials contained or generated by devices such as computers and cellular telephones. Not surprisingly, the opinions do not express any bright-line test for defining a public official’s personal-record privacy. But the opinions clearly support the idea that there can be private personal records in the public workplace that are not subject to review requests made under Florida’s public-records law.
The Public Records Law
The Florida Constitution provides that “every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state” (Florida Constitution, Article 1, Section 24). From this starting point, the Legislature crafted the statutory provisions of the public-records law found in Chapter 119 of the Florida Statutes.
The urge to throw open the doors to city hall stems from Chapter 119 and its mandate that “every person who has custody of a public record shall permit the record to be inspected or examined by any person desiring to do so” (Section 119.07[1][a], Florida Statutes [2003]). Of course, the public-records law holds that a municipality is an “agency.” (See Section 119.011[2], Florida Statutes [2003].) And, as an agency, a municipality’s public records are defined to include the following:
“. . . All documents, papers, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency” (Section 119.011[1], Florida Statutes [2003]).
The breadth of this definition is limited by the critical phrase “made or received . . . in connection with the transaction of official business . . .” Id. That phrase establishes the cornerstone of what may be considered “public records” under Chapter 119, and correlatively, what may be excluded from the definition of public records.
Over the years, Florida’s courts have attempted to define and refine the reach of required record disclosure under Chapter 119. In Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc. 379 So. 2d 633 (Fla. 1980), the Florida Supreme Court reversed a lower district court of appeal that “in effect said that Section 119.011(1) applies to almost everything generated or received by a public agency.” Id. at 640. The Supreme Court specifically stated that “the district court’s interpretation of Section 119.011(1) [wa]s too broad.” Id. In reversing the lower court, the Supreme Court construed the statutory definition of public records to include “any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Id. (Emphasis added.) The court rejected the idea that any material made in connection with official business, however tenuous the connection, represented a public record. Instead, the court limited the definition of public records to what may be referred to as the final evidence of knowledge regarding some issue or area of government business. The court specifically explained that public records are to be contrasted with “drafts or notes, which constitute mere precursors of governmental ‘records’ and are not, in themselves, intended as final evidence of the knowledge to be recorded." Id. (Emphasis added.)
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One way to understand the distinction between records intended to perpetuate, communicate or formalize knowledge (public records) and incidental information or precursors to formalized knowledge (personal/private records) may be found in the Florida Department of State’s own publication “Electronic Records and Records Management Practices – February 1996” (ERRMP). Within that publication is a section dealing with e-mail records management and retention that distinguishes between e-mail which may be considered public records and those it refers to as “transitory and personal messages” (ERRMP, page 13). The definition of transitory and personal messages seems to convey the essence of what the Supreme Court did not mean by the phrase “intended to perpetuate, communicate, or formalize knowledge” in its Shevin opinion. Transitory messages are described as “records that are created primarily for the informal communication . . . [and] do not set policy, establish guidelines or procedures, certify a transaction or become a receipt. The informal nature of transitory messages might be compared to a communication taking place during a telephone conversation or verbal communications in an office hallway” (EERMP, page 13). While this state publication would have no precedential value in a public-records legal dispute, it offers additional understanding of the public/private distinction crafted by the Supreme Court in Shevin. And while the distinction set forth by the court in Shevin may seem too fine to discern in some instances, it clearly established the foundation upon which recent courts have concluded that certain records generated or held by government employees on government devices may be deemed personal records, off-limits to a Chapter 119 public-records inquiry.
What the Cases Tell Us
The first case was Media General Operation, Inc. v. Tom Feeney, 849 So. 2d 3 (Fla. 1st DCA 2003). The basic facts involved the publisher of two major Central Florida newspapers who requested copies of the cellular-phone billing records of five staff employees of the Florida House of Representatives. The records request was first served upon the House. However, the Republican Party of Florida paid for and kept the phone records, not the House of Representatives. The request was ultimately served upon the Republican Party, which voluntarily offered redacted versions of the billing records, excluding those items it deemed to be personal phone calls unconnected to House business. Although the issue of whether the Republican Party of Florida was a governmental agency or acting on behalf of a governmental agency was not before the court, the court assumed the request was appropriate since the Republican Party voluntarily offered the records. The only issue before the court then was whether the cell-phone billing records were public records under Chapter 119.
In its analysis, the court quickly concluded “the ‘private’ or ‘personal’ phone calls by these five individuals were not created or received in connection with the official business of the House. Therefore, we agree with the trial court that the personal phone calls fall outside the current definition of public records and were properly redacted.” Id. at 6.
Clearly, this case supports the idea that a city’s phone records may be redacted to exclude personal phone calls if the phone calls relate to private or personal matters. Obviously, cities would not want to encourage abusive use of city resources for personal business, but the result of the Media General opinion seems to declare that where occasional personal phone use and corresponding records exist, they do not come within the ambit of required disclosure under Chapter 119. However, this point must be taken with caution, because there may be other ways in which the same personal records may become subject to Chapter 119.
For instance, consider if a city auditor was designated to monitor phone use, and routinely collected and reviewed copies of all phone records of city officials and employees to ensure that excessive personal use (i.e. excessive personal use of a city-issued cell phone) was not occurring. In that instance, the records request served upon the custodian of the auditor’s records would have to be honored as falling within the scope of Chapter 119. The auditor’s review of each call contained in the cell-phone record would fall within the scope of fulfilling his or her job duties, and such duties would arguably represent official city business. Accordingly, the public would have a right of access under Chapter 119. Therefore, it is critical to remember that the specific factual circumstances of a given court case such as the Media General case must be carefully considered when determining whether a city’s policy remains consistent with the prevailing law, or if a policy of nondisclosure may be a violation of Chapter 119.
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Another opinion that found computer records outside the scope of Chapter 119’s definition of public records was issued by the Florida Supreme Court in State of Florida v. City of Clearwater, 863 So. 2d 149 (Fla. 2003). In that case, a newspaper publishing company sought copies of all e-mails either sent from or received by two city employees over the city’s computer network. The city’s e-mail records policy called for the employees to review their e-mails and sort them into two categories: personal and public. The city then copied the public e-mails and provided them to the newspaper. Dissatisfied with the city’s segregation of public and private records, the newspaper filed an action seeking an order compelling the city to release the purportedly private e-mails. The newspaper argued principally that it was entitled to all the e-mails generated by and stored on the city’s computers, regardless of their content or intended purpose. See id. at 151. Ultimately, both the trial court and district court of appeals rejected the newspaper’s argument, concluding that “‘private’ or ‘personal’ e-mails fall outside the current definition of public records because they are neither ‘made or received pursuant to law or ordinance’ nor ‘created or received in connection with official business’ of the City or ‘in connection with the transaction of official business’ by the City.’” Id. at 151, citing Times Publishing Co. v. City of Clearwater, 830 So. 2d 844, 847 (Fla. 2nd DCA 2002). Determined to obtain the personal records of Clearwater’s employees, the newspaper appealed the matter to the Supreme Court.
The issue framed and answered by the Supreme Court was whether all e-mails transmitted or received by public employees of a government agency are public records pursuant to Section 119.01(1) of the Florida Statutes and Article I, Section 24(a) of the Florida Constitution by virtue of their placement on a government-owned computer system. The court’s answer to this question was a clear “no.”
In its analysis, one of the court’s first points was that public records are those “that are in some way connected to ‘official business’” (Clearwater, 863 So. 2d at 152). The court further explained that beyond their digital character, personal e-mails differ little “from personal letters delivered to government workers via a government post office box and stored in a government-owned desk.” Id. at 153 (citation omitted). Adding another leg to support its conclusion that personal e-mails fall outside the public-records definition, the court showed its own concern for protecting the personal or private character of e-mail within the judicial branch. The court compared the privacy of the city employees’ personal e-mails to the personal e-mails of judges and others within the judicial branch, which the court had already decided were “clearly not official business and . . . consequently not required to be recorded as public record” (In re Amendments to Rule of Judicial Administration 2.051 – Public Access to Judicial Records, 651 So. 2d 1185 [Fla. 1995]). Though that decision was rendered in the context of construing the court-created rules governing public access to records of the judicial branch, the court recognized the virtually identical definition of public records in both Chapter 119 and the Rules of Judicial Administration. In effect, the court reasoned that if there could be personal e-mail records on court computers that fell outside the scope of judicial business, there could be personal e-mail records on city-owned computers that clearly fell outside the scope of city government business. (See Clearwater, 863 So. 2d at 153.) Finally, the court reached back to the language it used in the 23-year-old Shevin opinion, stating that the newspaper’s “argument that the placement of e-mails on the City’s computer network automatically makes them public records is contrary to . . . [the] decision in Shevin.” Id. at 154. It concluded that mere placement of e-mail on the computer network cannot establish a public record, but “e-mails must have been prepared ‘in connection with official agency business’ and be ‘intended to perpetuate, communicate, or formalize knowledge of some type.’” Id. citing Shevin, 379 So. 2d at 640. Here again, one sees the suggestion that some intent to create a record in connection with official business is essential to information being deemed a public record.
What the Cases Don’t Tell Us
It is important to know that the Media General and Clearwater cases generally support a city’s desire to prevent the unnecessary disclosure of personal/private electronic records pursuant to Chapter 119. However, as already discussed, there are specific factors involved in each case that simplified the courts’ task of reaching their conclusions.
For instance, in the Clearwater decision, the court immediately reframed the issue in terms of whether “all” records contained on government computers fall within the statutory definition of public records (Clearwater, 843 So. 2d at 150). The narrow scope of this question simply begged for an easy “no” answer from the court. In its second footnote to the case, the Supreme Court admitted that the question was posed in a very narrow manner, and even hinted that a different outcome might have resulted if: (1) the case involved e-mail that may have been isolated by a government employee charged with detecting misuse of government computers (because, as in the phone-record-auditor example above, records in such instance likely would be deemed a public record); (2) the case posed a question of how the public’s interest in access to all e-mail records should be weighed against a government employee’s individual right to privacy (because, in light of express legislative intent that all government records be open and the cases and numerous Attorney General opinions surrounding Florida’s “Government in the Sunshine” policy, public policy likely would dictate that public access to a government worker’s computer would trump any privacy right of the government worker); and (3) the case involved a dispute as to the actual nature of the “personal” e-mails segregated by the employees themselves (because had the newspaper requested what is known as an “in-camera” inspection of each individual e-mail by the court as to the public or private nature of the e-mails, it is possible many of the private e-mails may have been sufficiently tied to official business that they would have been deemed public records). See id. at 151.
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Another issue raised in the Clearwater decision involved the city’s “‘Computer Resources Use Policy,’ which stated that the city’s computer resources are the property of the city and the users have no expectation of privacy.” Id. at 154. The court discussed the policy in the context of dismissing the apparent suggestion by the newspaper that such policy somehow transformed material on the city’s computer network into material subject to disclosure under the public-records law. In essence, the court concluded while a city policy may grant the city certain ownership rights to material generated on an employee’s computer, nothing in such policy could expand the statutory definition of public records to reach what would still be considered personal e-mails under Chapter 119.
The unspoken warning raised by the court here is that a city’s e-mail or computer-use policy must be cautiously considered when deciding whether to comply with a request for e-mail or other electronic material under Chapter 119. It is possible that, like the example of the phone or e-mail record auditors whose jobs require gathering records for review and thus rendering such material public records, the city’s computer-use policy could contain language that brings the electronic material into the realm of official city business and thus a public record. For instance, if a city’s computer-use policy contained something such as “all documents stored on an employee’s computer or e-mails sent or received by an employee’s computer are city property and will be recorded and stored . . . . The city maintains the right to review and utilize such stored e-mails in disciplinary matters or otherwise with regard to the particular employee,” this type of policy language suddenly renders those stored documents and e-mails part of the official business of human-resource management within the city’s administrative structure. Accordingly, anyone with knowledge of that policy could strongly argue that the stored records constitute records of official city business – not because of their actual content, but because of the city’s purposeful compilation and storage of such e-mails or documents in the course of its business.
One positive result of these cases is the advice that may be gleaned for future handling of records requests and policies governing electronic information. Obviously, the fact that such attention has been brought to the potential exposure of personal material in a public-records dispute should cause city employees and officials to think twice before casually committing every thought to e-mail. Likewise, it will cause cell-phone users to think twice before making personal calls on a city-issued cell phone where the records of such calls may be subject, at the very least, to an in-camera inspection by the court if sought by a determined requester. Finally, it would be advisable to have a record-request policy that requires an employee or officer to automatically go through e-mail and segregate those personal e-mails from the business-related e-mails as a normal course of action. This step would not preclude a requester from challenging the segregation of records and seeking an in-camera court inspection of them, but it would eliminate haphazard responses to e-mail record requests by cities, and would establish a routine policy for handling such requests. More credibility would attach to the city’s action if an established policy existed, instead of a sudden rush to review and eliminate messages on a sporadic or issue-oriented basis.
In light of both the old and new case law regarding public records, it is clear that everything is not a public record subject to disclosure. There are definitely some records in city hall that may be deemed personal/private records and need not be disclosed under Chapter 119. It is the author’s hope that cities can use this discussion as a springboard for better grasping the breadth of the public-records law, reviewing how your city has handled electronic records requests, and revising (or creating) e-mail and computer-use policies that support cities’ interests. Better awareness in all these areas will help cities minimize mistakes and missteps in their efforts to comply with the public-records law in the electronic age.
Eric E. Hartwell is assistant general counsel of the Florida League of Cities.
Reprinted from Quality Cities May/June 2004
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