HoodaThunk?

The folks at the State Sunshine and Open Records blog have certainly taken notice of the situation here in Loudoun and, I’m proud to say, my recent post on the court ruling that a public official is basically to be denied any privacy in communications. A new post over there asks the extremely pertinent question of what makes a campaign e-mail private or public. The post is so well written and so tight, I can’t think of a way quote any piece of it without quoting the whole thing, so I’m just going to send you over there to read it yourself. Go ahead, I’ll wait.

Welcome back. OK, the question asked in this post is whether a public official is to be allowed to run a private campaign. Before going any further, let me go ahead and state the policy that should be considered normal regarding the use of government computers and networks. When I was an IT manager for a medium-sized firm several years ago, I came up with a general policy regarding the use of the company’s networks. It read, succinctly put, that anything created on, stored on, or transmitted through the company’s networks were considered company property. In my duties as the administrator of the system, I was fully authorized to open, read, archive and/or delete anything that existed on the network without any further notification to a specific employee. In other words, I was fully authorized to read every single e-mail or open any file on the network. Employees were to understand they had no expectation of privacy.

The same should go with the use of government computers. Anything created on them, stored on them, or transmitted by them should be considered public record and subject to a FOIA request. (Bearing in mind that certain items are protected from such requests as defined in the FOIA itself.) Just so we’re clear, I’m not talking about e-mails sent to or from government owned systems in any way. The point of contention is dealing with private systems paid for by private money – no government systems involved.

I believe it should be obvious that a public official still has a private life that is, in no way, connected with the execution of his public office. Letters and calls to family and friends regarding personal matters should be as equally protected as those of people who are not holding office. I believe that campaign communication is a function of a private endeavor and is not a matter of the execution of a public office. When a sitting Supervisor discusses campaign strategy, finance, or events with members of their campaign, that communication does not meet the standard of a public document.

If, however, public business is discussed in a given e-mail then that part of the document – what was said regarding that public business and with whom the communication was made – is very much part of the execution of that public official’s job. That makes it subject to a FOIA request, yes, but not in its entirety unless the entire e-mail is a discussion of that public business. In those circumstances, I feel the best move by the court is to appoint a court mediator to go over the e-mails and release the parts that qualify.

If a given e-mail account is not used by the public official for public business, then nothing about it should be released to the person filing the FOIA request. Ah, but do we just accept the word of the public official?

Yes, we do. Unless someone has a reasonable suspicion that the official is conducting business in that e-mail account, then the concept of innocent until proven guilty should apply. The penalty for lying about that should be extremely painful for the official making such a fraudulent claim. I’m unsure what level of law is currently making the conduct of public business from a private account a no-no (whether it’s an actual law or just a general ethical agreement) but we should look to codify that much more tightly to avoid situations like this judge has given us. To simply assume the reverse, as has been done in this case, is to presume guilt and open a person’s private life up to potentially hostile strangers. That’s too high a price to ask of our public officials.

In the meantime, I would suggest a number of actions on the parts of our public officials who do not want to have their private, family conversations handed over to political enemies. First, do not ever conduct public business on private accounts. If you ever have, open a new account immediately and send out a “change of address” notification to personal contacts so they avoid sending anything personal to the old account.

When accessing the personal account, never pull the e-mail from the e-mail server to your home PC. Access it using a web interface to keep copies of those personal e-mails from ever being stored on your home PC.

Should anyone send you an e-mail that talks about public business, reply to them to send any such inquiries to your work e-mail and nothing else. Keep any mention of public business separate. Forward anyone who does this a link to this ongoing story by way of explanation. They’ll understand.

I’ll post more as I get more.