Special Interests

By Davis, Charles N. | Investigative Reporters and Editors, Inc. The IRE Journal, September/October 2008 | Go to article overview
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Special Interests

Davis, Charles N., Investigative Reporters and Editors, Inc. The IRE Journal

Campaign season exposes holes in FOI laws

This year's presidential campaign has captivated the nation, and freedom of information is playing a central role in how journalists cover it. Many of the stories emanating from this year's race - from Sen. Barack Obama's Chicago days to Gov. Sarah Palin's e-mails to the funding of the party conventions - are being driven by some fine FOI work.

Several unresolved issues raise important FOI questions that have vexed requesters in other contexts for years, including the public records status of e-mail and the proper parameters of executive privilege, deliberative privilege and the work product doctrine. We could be feeling the after-effects of some of these requests for years.

The hottest issue to date, and one that mirrors FOI flaps simmering in a number of states, involves Gov. Palin's e-mails.

The Anchorage Daily News raised one of the most frequent FOI questions of late in a Sept. 15 story by Lisa Demer about Gov. Sarah Palin: What's the FOI status of a public official's Blackberry messages?

"The tech-savvy governor has one of the devices (which allow users to read and send e-mails) for state business, another for personal matters, but those worlds intertwine," Demer wrote. "Palin routinely uses a private Yahoo e-mail account to conduct state business. Others in the governor's office sometimes use personal e-mail accounts, too."

The use of nongovernmental e-mail addresses for conducting public business is a troubling trend popping up with increasing frequency across the country. From my post at the National Freedom of Information Coalition, I field inquiries every week about public officials mixing public and nonpublic e-mails on Google accounts, text messages and Blackberry devices.

This issue should be simple, really. Whether the public official uses Yahoo, Gmail or a .gov address, e-mail discussing governmental business should be public unless it falls into a clearly defined exemption under state or federal FOI laws.

Were it as simple as that, the press would have access to a wide range of e-mails, not only from Palin but from governors in Missouri, Texas and several other states where gubernatorial e-mail FOI requests have languished.

Concerns over e-mail access are two-fold: On the one hand, public officials' e-mail should be presumptively public unless it meets an exemption under the law, and access advocates have to worry about retention of e-mail when it is saved on Yahoo or Google or any non-governmental accounts.

In other words, there are any number of reasons why government officials find online e-mail services so attractive - and none of them are good news for open government.

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