![Page 1: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/1.jpg)
E-Mail as a Record and the Legal Implications Thereof
Sarah A. BradleyDeputy Attorney General
October 15, 2015E-Records Forum
![Page 2: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/2.jpg)
In Nevada = Yes Reno Newspapers, Inc. v. Jim Gibbons,
Governor of the State of Nevada, 266 P.3d 623, 127 Nev. Adv. Op. 79 (Dec. 15, 2011).
Newspaper sought access to 104 of former governor’s e-mail communications while he was in office.
E-mails must be provided unless state can show why they are confidential.
Is E-Mail a Record?
![Page 3: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/3.jpg)
Other issues involved in the case, such as whether a requester is entitled to receive a log if his or her request is denied, in whole or in part.◦ The answer is, generally, yes.
Request was for e-mails sent over a six-month period between Governor and ten individuals.
E-mails were sent on the Governor’s state-issued e-mail account.
Reno Newspapers, Inc. v. Jim Gibbons, Governor of the State of Nevada aka “the E-Mail Case”
![Page 4: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/4.jpg)
Newspaper wanted copies of the e-mails, or, if this request was denied, a log identifying, for each e-mail, the sender, all recipients, the message date, and the legal basis the State was asserting in denying access.
State denied the newspaper’s request for the e-mails or a log.
The State indicated that all the requested e-mails were confidential because they were either privileged or not considered public records.
“The E-Mail Case” (2)
![Page 5: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/5.jpg)
The Newspaper again requested a log containing a description of each individual e-mail so that it could assess whether to challenge the State’s classification of the e-mails as confidential.
The State again denied the Newspaper’s request. The Newspaper filed a writ of mandamus in the
district court seeking access to the e-mails, or, in the alternative, to receive a detailed log regarding each e-mail and the reason the State asserted the e-mail was confidential.
“The E-Mail Case” (3)
![Page 6: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/6.jpg)
The District Court held a hearing to consider the Newspaper’s petition and conducted an in camera review of the e-mails.
The District Court denied the Newspaper’s request for a detailed log or index, reasoning that because of the brevity of some of the e-mails, such a log or index would disclose otherwise confidential information.
“The E-Mail Case” (4)
![Page 7: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/7.jpg)
The District Court determined that of the 104 e-mails requested:◦ 24 were personal in nature,◦ 32 were of a transitory nature,◦ 42 were of a transitory nature, and/or covered by
the deliberative process privilege, and◦ 6 were not confidential.
The District Court granted the Newspaper’s petition regarding those 6 e-mails and denied the petition as to the remaining 98 e-mails.◦ The Newspaper appealed.
“The E-Mail Case” (5)
![Page 8: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/8.jpg)
On appeal, the Newspaper’s primary concern was the District Court’s refusal to require the State to provide it with a log.
The Supreme Court does not engage in a discussion regarding whether or not e-mails are public records.
The Court just assumes they are in its analysis.
Likely there would have been more of a discussion if the e-mails were sent from the Governor’s personal account.
“The E-Mail Case” (6)
![Page 9: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/9.jpg)
DR Partners v. Bd. of County Comm’rs, 116 Nev. 616, 6 P.3d 465 (2000).◦Newspaper requested billing statements
documenting county officials’ use of publicly-owned cell phones.
◦The county purchased the phones and paid the monthly bill for use.
◦Neither party disputes that the records at issues or public records under the NPRA.
◦This view is consistent with the prevailing weight of legal authority (Indiana, Pennsylvania, Georgia cases cited).
DR Partners: Government-Owned Cell Phone Records
![Page 10: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/10.jpg)
Same assumption made in this case as in DR Partners.
Overview of the Court’s NPRA jurisprudence. “Open records are the rule,” any
nondisclosure of records is the exception. All government-generated records are open
to disclosure.◦ E-mails sent/received via government e-mail
accounts are open to disclosure.
“The E-Mail Case” (7)
![Page 11: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/11.jpg)
Court did not rule on the 98 e-mails themselves; instead, the State was to provide a detailed log and the matter was remanded back to the District Court for that Court to determine whether these e-mails are subject to disclosure.
Throughout this case, there is an assumption that the e-mails are public records.
“The E-Mail Case” (8)
![Page 12: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/12.jpg)
Policy regarding classifications of e-mails.◦ This policy was the version prior to the one now
available at http://nsla.nv.gov/Records/Resources/Resources_Main/
Transitory Correspondence: Delete after no longer necessary.◦ Example: I will be at tomorrow’s meeting. After
the meeting, this e-mail is no longer needed.
State’s “Informal Employee E-Mail Policy” ≠ Law
![Page 13: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/13.jpg)
Routine Business Correspondence: Keep according to appropriate records retention schedule.
Executive Correspondence: Permanent retention; keep for period specified in records retention schedule, then transfer to State Archives.
From the current version of this policy: “All email records, like other electronic records, should be reasonably accessible for the purposes of legal discover” [and inspection or disclosure pursuant to a public records request].
State’s “Informal Employee E-Mail Policy” ≠Law
![Page 14: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/14.jpg)
Washington State: Freedom Foundation v. Gregoire, 178 Wash.2d 686, 310 P.3d 1252 (2013). ◦ E-mails included in records reviewed for possible
“Executive Communications Privilege” exception to Washington’s PRA.
Wyoming: Aland v. Mead, 327 P.3d 752 (Wyo. 2014).◦ Emails included in “communications” reviewed for
possible deliberative process privilege exception to Wyoming’s PRA.
Other States: E-Mail = A Record
![Page 15: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/15.jpg)
Duties to treat it as a record. This means:
◦ It must be retained, stored, organized, and available for public inspection.
E-mails are easy to generate and managing e-mails can be a challenge.
Some state agency users archive e-mails to their personal computer, due to e-mail box storage concerns.◦ This e-mail is then not as easily searched and
included in the agency’s records management program.
E-Mail is a Record, Now What?
![Page 16: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/16.jpg)
Use of personal devices to store e-mail may open those devices up to inspection.◦ Is the e-mail created and/or access via web
access or downloaded to the personal device? Use of personal e-mail accounts for public
business will open up those personal e-mail accounts for inspection.◦ Use of personal e-mail accounts also may be a
security concern.
Summary of the Issues (2)
![Page 17: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/17.jpg)
E-mail may generate multiple copies.◦ Sender, receiver, cc-, bcc-, forwarded copies, …◦ Who is the record holder?◦ What should happen with the “duplicate” courtesy
copies?◦ What is the record?
The original or the final string with all replies What about each individual reply?
Is the record the e-mail or the attachment? Are personal e-mails sent via a government
e-mail account public?
Summary of the Issues (3)
![Page 18: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/18.jpg)
Duty to provide all possibly responsive records.
Good faith immunity (see NRS 239.012).◦ Doesn’t cover willful disregard.
Also, if a requester prevails on a petition to District Court, he or she is ENTITLED to recover costs and reasonable attorneys’ fees.◦ Not optional as in other states.
Suggestions?
Method to Organize, Store, Retain, and Search is Crucial
![Page 19: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/19.jpg)
Sender◦ Include “reply” sender and original sender of the
first e-mail Cc- and Bcc-
◦ Convenience Copies are duplicate records. See NAC 239.019 or 239.578 Duplicate records may be destroyed when no longer
administratively useful because they are nonrecords. See NAC 239.051 or NAC 239.705(2)
How often do you delete old messages? And if you do, are they still stored on your agency’s server?
◦ It gets messy quickly…
Who is the Record Holder?
![Page 20: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/20.jpg)
Probably the original e-mail and each reply, but not cc- or bcc- copies.
Each reply and the original will have separate metadata, even though the e-mail content itself will contain some duplication.
What is the Record?
![Page 21: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/21.jpg)
E-mail is quick and easy.◦ Personal e-mail account used for public business?◦ Public e-mail account used for personal use?◦ Personal devices used for e-mail
Tablets, phones, personal computers.
Easily Co-Mingled
![Page 22: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/22.jpg)
Former CIA lawyer: If an asset’s name was exposed on Hillary Clinton’s e-mail, it could be ‘literally lethal’◦ http://
www.businessinsider.com/hillary-clinton-and-cia-asset-information-2015-10
Obama: Hillary Clinton’s Personal Email a Mistake but Didn’t Endanger U.S.◦ http://blogs.wsj.com/washwire/2015/10/11/obama-hillary-c
lintons-personal-email-a-mistake-but-didnt-endanger-u-s/
Obama Tells ‘60 Minutes’ Hillary Clinton Made Email ‘Mistake’◦ http://www.nytimes.com/2015/10/12/us/politics/obama-tell
s-60-minutes-hillary-clinton-made-email-mistake.html?_r=0
Hot Topics in the News (1)
![Page 23: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/23.jpg)
Obama: Criticism of Hillary Clinton’s Private Email ‘Ginned Up’ Because of Politics◦ “I think she’d be the first to acknowledge that
maybe she could have handled the original decision better and the disclosures more quickly.”
◦ http://www.huffingtonpost.com/entry/barack-obama-hillary-clinton_561aee62e4b0e66ad4c85506
Tech Firm Running Hillary Clinton’s Email Server ADMITTED it was Vulnerable to Hackers◦ http://
www.dailymail.co.uk/news/article-3264441/Hillary-Clinton-s-personal-email-server-attacked-Chinese-North-Korean-German-malware-left-secretary-state-post.html
Hot Topics in the News (2)
![Page 24: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/24.jpg)
Is Ambassador Caroline Kennedy Using Private Email for Government Business?◦ http://www.cbsnews.com/news/is-amb-caroline-kennedy-usin
g-private-email-for-government-business/
◦ Senior staff at the U.S. Embassy to Japan, including Ambassador Caroline Kennedy, have used personal email accounts for official business, an internal watchdog said in a report Tuesday. Some emails contained sensitive information.
◦ The State Department's Office of Inspector General said that it identified instances where emails labeled “sensitive but unclassified” were sent from or received by personal email accounts. Department policy is that employees generally should not use such accounts for official business, the watchdog's office said.
Hot Topics in the News (3)
![Page 25: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/25.jpg)
In DR Partners, the Nevada Supreme Court held that billing records for publicly-owned cell phones used by county officials are public.◦ The Court ordered unredacted billing records that
showed incoming and outgoing telephone calls be provided.
What about public use of personal devices?◦ From the SAM, section 1616:
Every department of the State of Nevada must develop a cellular telephone, portable tablet, or other mobile device policy that meets the department’s specific needs regarding the necessary use of such devices for work-related activities while operating within budget authority, addressing the potential legal issues regarding access to the record of the devices’ use, and being compliant with the State’s personnel rules associated with requiring employees to be available for contact after their regular working hours.
Government Use of Personal Devices (1)
![Page 26: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/26.jpg)
Three Methods Permitted:◦ State-Issued Device,◦ Stipend Paid By State for Employee Using Personal Device for
State Purposes◦ Employee Voluntary Uses Personal Device to Conduct State
Business Without Compensation.
Employees must be made aware that it is possible the record of use for any device used for State business could be considered a public record.◦ More likely not just a possibility as implied by the
use of the word “could.”
Government Use of Personal Devices (2)
![Page 27: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/27.jpg)
O’Neill v. City of Shoreline, 170 Wash.2d 138, 240 P.3d 1149 (2010).◦ Request received for e-mail and associated metadata. E-
mail was deleted from City’s server, but may be retained on Mayor’s home computer. E-mail and metadata are both public records subject to
disclosure.◦ “The City has a duty to provide records to the public that
are subject to the PRA.” ◦ “Information that must be disclosed under the PRA
conceivably exists on the hard drive of [Mayor’s] computer.”◦ “If it is possible for the City to retrieve this information, the
PRA requires that it be found and released to the [requester].”
Mayor’s Home Computer = Subject to Inspection
![Page 28: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/28.jpg)
The inspection of the Mayor’s home computer by the City is “appropriate only because [the Mayor] used her personal computer for city business.”
“If government employees could circumvent the PRA by using their home computers for government business, the PRA could be drastically undermined.”
O’Neill v. City of Shoreline (2)
![Page 29: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/29.jpg)
Nissen v. Pierce County, 2015 WL 5076297 (Wash. June 11, 2015).◦ Sheriff’s detective sought cellular telephone
records of prosecutor. “Any and all of Mark Lindquist’s cellular telephone
records . . . or any other cellular telephone he uses to conduct his business including text messages from August 2 ,2011” and “June 7, 2010.”
Work Text Messages on Private Phone = Public
![Page 30: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/30.jpg)
Number identified in the request is Lindquist’s private cell phone.
Lindquist bought the phone, pays for its monthly service, and sometimes uses it in the course of his job.
Text and call log provided to requester with personal text and call log redacted.
Prosecutor authorized release of records for calls that “may be work related.”
Nearly half of the text messages Lindquist sent or received and many of his phone calls during the relevant period potentially relate to his job as the elected prosecutor.
Nissen v. Pierce County (2)
![Page 31: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/31.jpg)
The County did not produce the contents of any text message, even though copies of them exist on his provider’s (Verizon) servers.
Nissen filed suit and requested an in camera review to determine whether all of the information is a public record.
Lindquist intervened with allegations of state and federal constitutional violations and violations of state and federal law.
Nissen v. Pierce County (3)
![Page 32: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/32.jpg)
County moved to dismiss complaint arguing that the records at issue could not be public records as a matter of law because they related to a personal cell phone rather than a county-issued one.
Trial court granted county’s motion; appellate court reversed and held that the records were public because they were prepared in his official capacity.
County and Lindquist appealed.
Nissen v. Pierce County (4)
![Page 33: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/33.jpg)
Holding: Text messages sent or received by Lindquist in his official capacity can be public records of the County, regardless of the public or private nature of the device used to create them.
Lindquist ordered to obtain, segregate and produce those public records to the County.
Nissen v. Pierce County (5)
![Page 34: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/34.jpg)
Washington’s PRA is “‘a strongly worded mandate for broad disclosure of public records.’” (citing Yakima County v. Yakima Herald-Republic, 170 Wash.2d 775, 791, 246 O,3d 768 (2011)).
Analysis turns on whether the record is “prepared, owned, used, or retained by any state or local agency.” RCW 42.56.010(3).
“[W]hen an employee acts within the scope of his or her employment, the employee’s actions are tantamount to ‘the actions of the [body] itself.’” (quoting Houser v. City of Redmond, 91 Wash.2d, 586 P.2d 482 (1978)).
Nissen v. Pierce County (6)
![Page 35: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/35.jpg)
Here then: “[A] record that an agency employee prepares, owns, uses, or retains in the scope of employment is necessarily a record ‘prepared, owned, used, or retained by [a] state or local agency.’” (quoting RCW 42.56.010(3)).
Only logical interpretation per the Court.
Nissen v. Pierce County (7)
![Page 36: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/36.jpg)
If Washington’s PRA “did not capture records individual employees, prepare, own, use, or retain in the course of their jobs, the public would be without information about much of the daily operations of government. Such a result would be an affront to the core policy underpinning the PRA—the public’s right to a transparent government. That policy, itself embodied in the statutory text, guides our interpretation of the PRA.” (citing RCW 42.56.030; Hearst Corp. v. Hoppe, 90 Wash.2d 123, 580 P.2d 246 (1978)).
Nissen v. Pierce County (8)
![Page 37: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/37.jpg)
“[A]n agency’s ‘public records’ include the work product of its employees.”
Nothing in the text or purposes of Washington’s PRA support the County's argument that only work product made using agency property can be a public record.
Employees can use their own property and still be within the scope of their employment. Dickinson v. Edwards, 105 Wash.2d 457, 467-68, 716 P.2d 814 (1986). ◦ Nevada’s SAM seems to agree.
Nissen v. Pierce County (9)
![Page 38: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/38.jpg)
Not a request for all data on a smartphone. Not a case where a public employer seized
an employee’s private cell phone to search for public records.
Not a case where a private citizen sues a public employee for access to the employee’s phone.
If so, would the analysis be different?◦ Maybe in Washington State, but maybe not in
Nevada
Nissen: Final Notes
![Page 39: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/39.jpg)
Is there a confidentiality provision? Is there confidential information to redact? Does the Bradshaw balancing test justify
withholding? Does a common-law privilege apply?
◦ Deliberative Process Privilege Only one addressed (so far) by the Nevada Supreme
Court◦ Executive Communications Privilege
◦Attorney-Client Privilege◦Attorney Work Product
E-Mail is Not Automatically Available
![Page 40: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/40.jpg)
Is there a confidentiality provision? Is there confidential information to redact? Does the Bradshaw balancing test justify
withholding? Does a common-law privilege apply?
◦ Deliberative Process Privilege Only one addressed (so far) by the Nevada Supreme
Court◦ Executive Communications Privilege
◦Attorney-Client Privilege◦Attorney Work Product
E-Mail is Not Automatically Available
![Page 41: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/41.jpg)
A privilege permitting the government to withhold documents relating to policy formulation to encourage open and independent discussion among those who develop government policy.
Must be “predecisional.” Goal: Foster candid discussions and
evaluations prior to making policy.
Deliberative Process Privilege
![Page 42: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/42.jpg)
Communications privilege applies only to communications “ ‘authored’ ” or “ ‘solicited and received’ ” by the governor or aides with “ ‘broad and significant responsibility for investigating and formulating the advice to be given’ ” to the governor. Judicial Watch, Inc. v. Dep't of Justice, 361 U.S.App. D.C. 183, 365 F.3d 1108, 1114, 1116 (2004) (quoting In re Sealed Case, 326 U.S.App. D.C. 276, 121 F.3d 729, 752 (1997)).
Executive Communications Privilege (1)
![Page 43: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/43.jpg)
Extends beyond the governor. In re Sealed Case, 121 F.3d at 747–52; Judicial Watch, 365 F.3d at 1114–17.
Senior advisors must have the ability to obtain frank advice to help the governor shape policy decisions; extending the privilege away from the governor assures that these advisors will receive candid opinions. Judicial Watch, 365 F.3d at 1115. However, “the demands of the privilege become more attenuated the further away the advisors are from the [chief executive] operationally.” Id. The privilege's justifications fade when dealing with aides unlikely to ever provide policy advice. Id.
Executive Communications Privilege (2)
![Page 44: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/44.jpg)
The communication must occur “for the purpose of fostering informed and sound gubernatorial deliberations, policymaking, and decisionmaking.” Dann, 848 N.E.2d at 485. Like any other privilege, we must limit the gubernatorial communications privilege to its purposes, here ensuring the governor's access to frank advice in order to carry out her constitutional duties. See Adcox v. Children's Orthopedic Hosp. & Med. Ctr., 123 Wash.2d 15, 31, 864 P.2d 921 (1993). The privilege does not exist to shroud all conversations involving the governor in secrecy and place them beyond the reach of public scrutiny. Only those communications made to inform policy choices qualify for the privilege.
Executive Communications Privilege (3)
![Page 45: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/45.jpg)
The client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.◦ Goal is to foster candid and honest discussions
between attorneys and clients.
Attorney-Client Privilege
![Page 46: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/46.jpg)
Tangible material or its intangible equivalent—in unwritten or oral form—that was either prepared by or for a lawyer or prepared for litigation, either planned or in progress.
Generally, exempt from discovery or other compelled disclosure.
Used to describe the products of a party’s investigation or communications concerning the subject matter of a lawsuit if made (1) to assist in the prosecution or defense of a pending suit, or (2) in reasonable anticipation of litigation.
Attorney Work Product
![Page 47: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/47.jpg)
NRS 239B.040:◦ Government database of private telephone
numbers and e-mail addresses, including fax numbers.
◦ Whole databases of telephone numbers and e-mail addresses are confidential. Concern was to avoid solicitation access.
◦ Individual records are public.
Private E-Mail Addresses are Likely Public
![Page 48: Sarah A. Bradley Deputy Attorney General October 15, 2015 E-Records Forum](https://reader035.vdocument.in/reader035/viewer/2022062713/56649f4e5503460f94c6f698/html5/thumbnails/48.jpg)
Questions??