03 July 2008

Florida, Wisconsin, Missouri AGs and Tennessee counsel clash with NH AG Ayotte, NH State House on nature of public emails.

You better believe it. And you better believe this will be in the record when I sue Martha McLeod over her emails relating to tabled HB 1428 to honor "rogue, classic bully cop hiding behind his badge" Norman Bruce McKay. Here's the draft lawsuit. Senator Letourneau had the good sense to bow out and produce his emails; read the State policy in the thumbnails claiming only emails to committees are public. Wrong answer guys.

First here's Florida.

Second here's Wisconsin.

Third here's Tennessee's issue involving Knox County Mayor Mike Ragsdale and 9-A commissioner Victoria DeFreese"

"Law Director John Owings and Chief Deputy Law Director Mary Ann Stackhouse cited Tennessee Code Annotated 10-7-301(6) in offering that opinion, which defined public records as all documents, papers, letters, electronic data files, and similar material “made or received pursuant to law or ordinance or in connection with the transaction of official business by any governmental agency”.

When asked if that included a constituent’s letters or emails to a commissioner, Owings replied, “If it is in connection with the transaction of official business, then the answer is yes.”

Owings also stated that, in the case of email, it wouldn’t matter if such communication was sent to the commissioner’s government account or to any private account the commissioner has.

“If [an email] relates to the transaction of official business, it wouldn’t matter if it were sent to an official Knox County account or a private account. It would be public record, in my estimation,” Owings said."

Fourth, from The FOI Advocate blog on Missouri:

"The Missouri attorney general's office sent a message to media outlets Monday emphasizing that e-mails on the state system are public records and often should be preserved. The office was reacting to reports that Gov. Matt Blunt's staff routinely purges e-mails and does not consider them public records. James Klahr, the attorney general's lead lawyer on Missouri's open-records "Sunshine Law," sent the message to dismiss the "unnecessary debate" over the issue."

The message does not mention Blunt but declares, "There should be no debate — e-mail communications are public records."

Viva the First Amendment.

PS: In Arizona -- as in Ohio, Florida and many other states -- discipline records of public employees is about to be open record. See HB 2159. So while other states open access to government New Hampshire profoundly restricts it. Nice.


Christopher King said...


Rocket science it is not.

A pain in the ass it most certainly is.

Christopher King said...

And oh, to be clear, one defense put forward by Attorney David Frydman is that NH House Speaker Noreli deletes her emails, just as in the Missouri case.

I will drag New Hampshire -- kicking and screaming if necessary -- into the modern era of open government.

Christopher King said...

Accord Griffis v. Pinal County, 2 CA-CV 2006-0052 , COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT A, 213 Ariz. 300; 141 P.3d 780; 2006

OVERVIEW: Former county manager's e-mails were not public records subject to Arizona's Public Records Law, where the content of the e-mails was merely a record of the former manager's personal affairs and fell outside the scope of information necessary for the public to have knowledge of the manner in which he conducted his office and performed his duties.

P23 Citing Carlson and other cases, this court also noted HN15"public records are presumed open to the public for inspection unless the public official can demonstrate a factual basis why a particular record ought not be disclosed to further an important public or private interest." Star Publ'g, 181 Ariz. at 434, 891 P.2d at 901.

P24 As noted earlier, the trial court ruled as a matter of law "everything that is on a [Pinal County] computer . . . is presumed to be a public record" and "any records generated on a public computer are presumptively open to public inspection." Relying primarily on Salt River, Griffis argues "[t]he threshold determination under the Public Records Law--which the trial court erroneously bypassed--is whether the documents are, in fact, public records or other matters subject to disclosure." According to Griffis, "the trial court erred by refusing to make a threshold determination as to whether [his] wholly personal e-mails are public records subject to the Public Records Law." That law, Griffis further contends, "extends only to public records," and "personal e-mails need not be disclosed to the public until a threshold determination is made that the e-mails are, in fact, public records."

KingCast says Defendants McLeod and Noreli cannot contradict the presumptive burden of production because all we seek are emails that pertain to HB 1428. Again, not rocket science.



In Colorado even private emails on public machines may be subject to disclosure if there is corruption or illegality.

In re Bd. of County Comm'rs , Court of Appeals No. 03CA0074 , COURT OF APPEALS OF COLORADO, DIVISION FIVE, 95 P.3d 593; 2003 Colo. App. LEXIS 1151; 20 I.E.R. Cas. (BNA) 1399; 31 Media L. Rep. 2448, July 17, 2003

OVERVIEW: Court reversed, in part, an order releasing, under the Colorado Open Records Act, two county employees' sexually explicit or romantic e-mails that were part of an investigatory report into a sexual harassment/hostile environment complaint.

Here's the Good Part; it's all based on expenditure of public funds so I'm gonna' add this to the lawsuit too:

"We need not address whether the e-mails have a demonstrable connection to the exercise of functions required or authorized by law because we conclude, for the reasons indicated below, that the e-mails involve the expenditure of public funds, and thus, are [*598] public records [**7] subject to disclosure under CORA.

First, Baker, an elected county official, and Sale, a county employee, are compensated by public funds. Baker and Sale sent many of the e-mails while they were working. An employee's use of work time involves the expenditure of public funds.

Second, the e-mails were sent on the "Metrocall" e-mail system purchased by the county for use by county employees. The county pays monthly fees to use this system. The use of this system to send sexually explicit e-mails or e-mails unrelated to county business is relevant to allegations that Baker misspent public funds, including improperly promoting and compensating Sale.

Third, Baker and Sale used county-owned computers to send e-mails to county-owned pagers over the Internet. The county expends public funds for the purchase, maintenance, and use of this equipment."



I'll say it right here: They will look like ass for not providing the emails. As Ransmeier & Spellman's highly-esteemed Partner Charlie Bauer told me in a Depo -- for the record -- "I'm not here to be anybody's friend."

I'm just here for the documents.

Christopher King said...

AG from all over the country disagree with Ayotte/NH State House.
Thursday, July 3, 2008 9:47 AM
From: "Christopher King" kingjurisdoctor@yahoo.com
To: robert.letourneau@leg.state.nh.us, martha.mcleod@leg.state.nh.us, graftonca@yahoo.com, townclerk@franconianh.org, dmullen@ranspell.com, police@franconianh.org, selectmen@franconianh.org, Marta.Modigliani@dos.nh.gov, USANH.Webmail@usdoj.gov, david.frydman@leg.state.nh.us, Kelly.Ayotte@doj.nh.gov....
Here are the updates, folks, a little Lexis tour-of-duty is noted in the comments as well.


I look forward to our Days in Court.

-The KingCaster

Christopher King said...

How does Massachusetts do it?


Robert A. Bertsche
100 Cambridge Street
Boston, MA 02114

Open Records
D. How is e-mail treated?

Electronic mail is a public record subject to the requirements of the Public Records Law. Government agencies have a duty to manage e-mail as part of the office's record-holding. This duty includes establishing a written policy for storing e-mail and retaining e-mails for the prescribed period of time based on content. E-mail should be printed and stored in paper form, but certain types of e-mail may be stored electronically.

A common issue with e-mail records relates to deletion of e-mail. Even if a custodian claims that an e-mail message was deleted, backup copies are often retained, and these records remain subject to discovery regardless of the intent to delete the message. E-mail is considered analogous to paper documents.