Presidential Politics, E-Mail, And The FOIA: Why It Should Matter To You

The federal Freedom of Information Act [“FOIA”] has recently made its way into national new stories for all the wrong reasons.  Hillary Clinton has become enmeshed in a controversy involving her use of a “private” e-mail account for conducting official business.  In addition, in a development that can charitably be described as ironic, the White House chose “National Freedom of Information Day” and “Sunshine Week” as the moment in time to eliminate a federal regulation that subjected its “Office of Administration” to the FOIA, thus apparently codifying a practice of the Bush and Obama administrations of denying access to records from that office.  White House office to delete its FOIA regulations.

For better or worse, most public agencies in Connecticut  do not have power to simply eliminate their obligations under Connecticut’s FOIA.  Regardless of politics, failure to comply with the FOIA may subject public officials to penalties.  Indeed, non-compliance with the FOIA has been a bi-partisan problem over the years.  Briefly, as we use the possible missteps of others for purposes of providing a teachable moment, here are a few reminders:

1. An e-mail message is a public record (no shocker here).
2. If you are transmitting and receiving e-mails concerning the public’s business, those e-mails are covered by the FOIA, and subject to the FOIA’s disclosure requirements. It does not matter if you use your agency provided e-mail account or your personal e-mail accounts.
3. Since your e-mails are public records, a) you should act accordingly in creating and saving e-mails, and b) to the extent that there is not an available exemption or privilege under the FOIA (for example, an attorney-client privileged communication), you may wish to refrain from creating e-mails that you do not wish to be made public. Without favoring any particular media outlet, I have referred to this standard over the years as the Hartford Courant test.  Please do not write anything that you would be reluctant to see in a headline.
4. It is a serious matter if you simply delete e-mails that pertain to your agency’s business. Indeed, there are criminal penalties for destroying public records (such as e-mails).  Understanding the Connecticut Freedom of Information Act and Access to Public Meetings and Records, by Mark J. Sommaruga (4^th Edition, 2013), at pp. 86-87.
5. It is always optimal to use your agency provided e-mail address so that a) you do not have to worry about commingling personal e-mails with agency business, b) personal e-mails are not inadvertently disclosed when you are complying with FOIA requests, and c) your personal e-mail account does not become jammed with agency related e-mails that you must preserve.
6. Finally, it may be worthwhile for your agency to have a policy for identifying the responsible parties for preserving e-mails.

As part of this teachable moment, here is a “test”  that I have given over the years at seminars and workshops on the FOIA.   In light of recent developments, the lessons provided are worth remembering, lest you inadvertently become part of a news story for all the wrong reasons.