Answer: The public records law authorizes requesters to inspect or obtain copies of “records” created or maintained by an authority. Under the law, a “record” is defined, in part, as any material on which written, drawn, printed, spoken, visual, or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority. Essentially, content, not format, determines whether something is a record. It does not matter how or where the information is stored, whether it be on a piece of paper, in a database, or in an email.

 

Emails sent to or from an authority’s email account are records subject to disclosure because they are material created and/or maintained by an authority on its email system. Such emails, like all records, are presumed to be open to public inspection and copying, but there are exceptions. Statutes, case law, and the public records law balancing test, which weighs the public interest in disclosure of a record against the public interest in nondisclosure, provide such exceptions. Therefore, any email sent to or from an authority’s email account—government business-related or personal—is subject to disclosure.

 

Generally, personal email accounts of government employees are not subject to disclosure. The exception is if an employee uses his or her personal email account for government business. Any email sent to or from the personal account that pertains to government business is subject to disclosure. Again, the content of the email determines whether it is a record not its location. Purely personal emails on an employee’s personal email account are not subject to disclosure.

 

If government employees use their personal email accounts for work purposes, they must ensure that they conduct a careful search of any such personal accounts when the authority receives a public records request. If government employees receive work-related emails on their personal email accounts, it is recommended that they forward those emails to their government email address immediately. This alleviates the need to search personal email accounts each time a new public records request is received. Ultimately, the best course of action is that government employees only use their government email accounts for government business and their personal email accounts for personal matters.