E-Mail as a Record and the Legal Implications Thereof

Sarah A. BradleyDeputy Attorney General

October 15, 2015E-Records Forum

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?

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”

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)

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)

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)

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)

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)

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

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)

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)

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

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

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

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?

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)

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)

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

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?

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?

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

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)

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)

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)

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)

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)

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

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)

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

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)

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)

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)

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)

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)

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)

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)

“[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)

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

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

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

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

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)

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)

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)

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

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

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

Questions??