Should Text and Email be Exempt From Freedom of Information Act?

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Governor Spitzer’s texts revealed illegal activity. The Detroit Mayor’s text messages revealed sexual scandal. New Jersey governor emails showed inappropriate activity. Access to a California Councilwoman’s emails are currently at the center of controversial debate over a biological lab. Their common link is electronic information and that they are all representatives of agencies that fall under The Freedom Of Information Act.

Although emails and texts have become a highly efficient way to accomplish multiple tasks in a relatively minimal amount of time, they are also a source of hot debate for groups who are fighting for open government in order to prevent secrecy amongst governments.

According to a report, there are seven states that are completely exempt from disclosure, meaning they do not have to turn over electronic media: Arkansas, California, Louisiana, Massachusetts, Michigan, Rhode Island and South Dakota.

In most of the other states, there are still limits on what electronic information can be turned over under the act.

From an official standpoint, email documents that are of public concern are held to the same standard as paper documents, and therefore held to the act. It seems to become skewed when other electronic communications such as private emails come into question and requests are made does controversy over the act’s intent begin.

According to Patrice McDermott, the director of opengovernment.org

There seems to be an attitude throughout government — at all levels — that somehow electronic communications are of its own kind and not subject to the laws in the way that print communications are

Advocates of complete document access contend that when government representatives hide behind the exemptions and DELETE emails, they are in essence hiding information from the public: the same public that pays for the computer and cell phone from which they send and receive their electronic communications. There is also heated debate over obtaining emails from privately held accounts, such as gmail or hotmail, which were sent or received on publicly provided media.

I contacted local school superintendent, Brad Williams and asked him about his public responsibility under the Freedom of Information Act regarding electronic communications. His response regarding emails was that anything, personal or school related, if it is on the public server then it is available under the act. The information is backed up by the server on a regular basis and available

“as often as you want as long as there is not an active request for them. There is a fee for man hours used to obtain those documents and any materials required to print them out.”

Williams stated that district employees who choose to use district provided cellular phones that have texting capabilities would be subject to the act’s disclosure, but that he already had his own cellular phone and the district was willing to provide reimbursement for basic phone service, which leaves any text service he pays for out of his own pocket out of the grasp of Freedom Of Information.

In states where electronic communications are not completely exempt, those who monitor the records, or guardians, decide which documents are deemed as publicly relevant and then can charge huge fees for sorting and making copies for these documents.

Some states are even allowed to delete emails on a regular basis that are deemed publicly unimportant, again, determined by the individual governing authority.

In Texas, a dispute between the Governor’s office and a computer consultant from Wisconsin led to the consultant making a public request for Governor Rick Perry’s private emails under the Freedom of Information Act. The Texas Governor was held accountable by the Federal Act, and was forced to comply. The computer consultant, John Washburn, launched bi-weekly requests for Perry’s emails under the act.

Washburn’s initial bill from the Governor’s office for the first four days of emails?
$568 USD.

Once again, the price for “Freedom” isn’t always without cost.