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GUEST COLUMN: Public service vs. private lives

Saturday, September 22 at 12:01 AM

By Lisa Jones, Denver

‘The only discernible purpose of disclosing the content of these messages is ... to satisfy the prurient interests of the press and public.”

So said the Colorado Supreme Court in 2005, blocking the Rocky Mountain News from obtaining e-mail exchanges between former Arapahoe County Clerk Tracy Baker and his paramour.

The Rocky saw the decision as a defeat for freedom of the press and openness in government. Others see it as an affirmation that public employees have private lives — even when using work e-mail to send personal messages.

That’s not to defend the bad behavior of Baker or any other official. It’s a defense of individual privacy vis-a-vis open-records rules.

Unlike most phone conversations and one-on-one meetings, e-mail creates a document, which may qualify as an open record.

In Colorado, not all e-mail messages written by public employees on the job are open records. Openness depends on content. Messages revealing candid statements by public officials about public business are, arguably, open records.

“Work product” including e-mail exchanges between officials and their staff about a rough draft of a report or ordinance, however, are not open.

E-mails can be — and often are — forwarded, leaked or otherwise disclosed regardless of whether they meet the standard of “open records.”

Open records may be inspected by anyone who asks to look at them — provided the records have been retained.

“There is no law in Denver that regulates the retention of e-mails,” according to Assistant City Attorney David Broadwell.

The city saves e-mail only as necessary to restore current e-mail in case of system failure.
“Our office has no policy with regard to required retention of e-mail,” said Denis Berckefeldt, spokesman for Denver’s auditor.

He cited a policy in place since 1998: “Once the message is read, it should be deleted as soon as possible so that the server operates efficiently.”

Michael Wright, Denver’s director of information systems and support, explained that normal business practice is to backup Denver’s e-mail servers each night. If an employee deletes a message the day it is received, the message will not be backed up. “This is also referred to as a double delete,” Wright said.

Some inquisitive reporters, bloggers and government watchdogs might cry foul, wondering what juicy scoops have been double-deleted from Denver’s public record.

Deletion is a practical necessity, though. During July, Denver logged approximately 733,000 incoming messages, and sent out approximately 596,000.

E-mail might document public business in unprecedented detail. But uniform retention and management of more than 1.3 million messages each month — close to 16 million messages each year — is onerous and unrealistic.

Some might argue that e-mail can preserve communications that may become important to the public in retrospect, and ought to be archived.

On the other hand, every saved message may be turned over to the press at some point to fulfill an open-records request.

This wouldn’t necessarily be a victory for open government.

Inappropriate scrutiny of public employees by the media has become routine. Recently, we’ve seen the media manufacture innuendo about local public servants and report details of divorce and private instances of perfectly legal naughtiness.

Also, open records requests have been exploited for political attack, fishing for tidbits that could embarrass an opponent.

Inappropriate personal scrutiny detracts and distracts from appropriate scrutiny of public policy and decision-making.

Obviously, public business should be conducted in the open and on the record. But the press should be able to scrutinize every aspect of public business, not every aspect of public officials.

Public servants may be more visible and might have to meet higher standards of public accountability than most of us. But their personal lives — and private messages — are not public property.

Lisa Jones is a freelance writer in Denver. Her e-mail address is lisa@deardenver.com.

READER COMMENTS

Actually, if a company provides you with an email system, they own all email traffic on that system. I have set up many companies and they all, without exception, have a clause right in the employee handbook that says they own the email system, all emails contained within are considered business documents.

Why would the public sector be any different?

Posted by Dravur on October 2, 2007 03:33 PM

WE own those tools used. That means WE own the information on them. You want privacy? BUY AND USE YOUR OWN EQUIPMENT!
Then you have all the right to expect privacy.

Oh, by the way, use YOUR OWN TIME to send your personal e-mails, I DON'T WANT TO PAY FOR THEM!

You get FIRED for abuse of company property in the private sector...

Posted by An IT Professional on September 22, 2007 11:46 AM

"Public servants may be more visible and might have to meet higher standards of public accountability than most of us. But their personal lives — and private messages — are not public property."

They (personal lives & private messages) certainly are public property when they are on computers that we the taxpayers have paid for - or their personal lives take place in the offices they were elected to - or have you forgotten that this is PRECISELY what was used to impeach Clinton?

I would agree with the position if this was on their privately owned home computers, but AND if Baker hadn't hired his mistress to do a job she wasn't qualified to do - and caused major office morale problems while he was at it - but this was typical often re-elected political ego at its worst. I don't care which party is involved - abuse of office is abuse of office, and proof was needed to oust this jerk.

Posted by Mary on September 22, 2007 05:22 AM