by Matt Hardin, FME Law Counsel

In the modern world, government employees increasingly turn to GMail, text messaging, and phone “apps” for personal communications. So long as those communications are personal communications, there’s nothing wrong with that. But what happens when government employees use Gmail to communicate with fellow staff about work-related topics?

While federal courts have made clear for decades that government records are covered under the Freedom of Information Act even when government employees generate or house those records on private servers, state courts have been far less clear. When the former Secretary of State, Hillary Clinton, was caught using a private server, she admitted a mistake and was forced to turn over the contents of that server to the government. In the states, however, government employees have been much more successful keeping records on private accounts out of the public’s reach.

The California Supreme Court recently ruled in City of San Jose v. Superior Court of Santa Clara County that public records created or stored on personal email accounts are still accessible under state transparency laws. Previously, California had held that public records laws did not require the state to search or produce records from any employees private email accounts – even if such records related to public business. The old approach allowed employees to shelter records from public view, even when those records reflected correspondence or meetings with lobbyists, special-interest groups, or political campaigns. Luckily, the California Supreme Court has reversed the tide.

Unfortunately, in states other than California, government employees can still use gmail accounts to hide public records from view. In New York State, for example, courts have held that a requester must prove that public records exist on a private email account, before the court will order that account to be searched. In arguments before the New York County Supreme Court in November, E&E Counsel asked the court how such a burden could ever be met. After all, the law seems to require requesters to produce information that a search will uncover, before such a search will be ordered. Unfortunately, the New York Courts have not seen fit to relax this impossible burden on citizens and the public who just want access to public records.

Things are even worse in Vermont, where E&E Legal currently has two cases pending against the Attorney General. One Court in Chittenden County, Vermont recently ruled that courts had no jurisdiction over employees who had left government service. Under that ruling, an employee who had public records stored on his Gmail account – or even in his garage or home office – would never be subject to open records laws in Vermont. All manner of things could be hidden in the dark by former government employees, simply because the courts ruled they had no jurisdiction over individuals who had left government service. The Chittenden County court didn’t stop there, however. A few days after its ruling that it lacked jurisdiction over former government employees, it also ruled that Vermont’s transparency laws do not cover private email accounts even for current government employees. High-powered lobbyists and special interests, therefore, are now free to correspond with public officials in Vermont on Gmail or via text messaging, without any fear that their activities might be brought into the light.

E&E Legal, however, will not give up without a fight. We know that the public deserves to know what it’s government – and its government officials – are up to, and that bureaucrats should not be allowed to hide in the shadows simply because they use Gmail or a private server for work. E& E Legal has even moved to join William Sorrell, the former Attorney General of Vermont, to one of its lawsuits as a defendant so that he can answer for his actions personally rather than through a bureaucracy that demonstrates no interest in transparency. We expect to fight throughout the spring to hold government employees – and former government employees – responsible for their actions through the power of transparency laws.