What distinguishes a campaign e-mail from a public document?

Last week, a judge in Virginia ruled that a county commissioner had to turn over to him e-mails that she wrote:

  1. At home
  2. On a computer she purchased with her own money
  3. Using a server that she pays for with her own money

See give me those e-mails you say are private and Judge to public officials: you have no private life and no expectation of privacy.

Jeff Wolinski is one of the people who corresponded with county supervisor Lori Waters. Emails between Wolinski and Waters are part of what requestor Sally Mann seeks.

In a comment here, Wolinski sheds some light on this:

My communications of a political nature with Mrs. Waters, who I raised funds for, are in question.

Although this might appear to be a backwater dispute, it has huge ramifications. Fundamentally what is at issue is the extent to which politicians can conduct a private campaign.

There are two competing concerns.

One of them is that it isn’t good for the public’s right to know for elected officials to evade public scrutiny by conducting their official business at home, on a private computer, using a private server. I agree with the judge that we have to be careful not to allow public officials to “privatize” communications that amount to public business by doing it that way.

On the other hand, I believe that an elected official ought to be able to conduct his or her campaign in private. In other words, if a public official who is a candidate for public office wants to use his or her private (or campaign) computer at the campaign office or at home, to write any number of emails that contain frank, unadulterated political talk and guidance about campaign business, that should remain private (unless they are written on government computers, or on government time, or using a government server).

The problem comes when campaign business commingles with the public’s business. Consider an email that says:

Did you hear back from John on Saturday’s fundraiser? Don’t let him bring his godawful son. If he hasn’t called yet, when he does, remind him to have his lobbyist call Jane about the water bill.

Assuming that e-mail is written on a private computer, with a private server, and not on government time, is it a public document?

The nature of email means that judges all over the country are going to be considering questions like this. If this ruling in Virginia stands on appeal, public officials who are also running for office–the office they are currently in or a different one–should be very nervous.

Sally Mann Court Opinion. (PDF file)

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12 responses to “What distinguishes a campaign e-mail from a public document?

  1. I sent you an email at your AOL account about this, but am not sure if you received it or not. Feel free to email me with the email address attached to this comment. There is an awful lot of back story to this.

  2. I didn’t get the email. I’ll try emailing you.

  3. From what I understand of this case, Ms. Waters had a computer at her home that was paid for by County tax dollars. In other words she was working from home, but using a county computer.

    She also had a computer at work and her personnel computer, for a total of three computer in question. I think the confusion may be which computer she was using and when. If she were only using her personnel computer to run her campagin, that should not be subject to FOIA.
    BUT if she was from her home, using the county computer that’s a different matter.

    In any regard she was sloppy and needs to be careful no matter what the appeal says.

  4. More public citizen

    Public Citizen…from where do you gleen your information? Support your statement with facts, otherwise I’m to think we need to refer to it as speculative. Anybody can say something. The burden is, can you support it?

  5. Ms. Waters testified at court that she regularly works from home and uses her home computer and a blackberry to fulfill her responsibilities as a county supervisor, for constituent correspondence, and to communicate with County staff and personnel. She supplied several emails that she admitted were public documents, that she had redacted sentences or paragraphs from with a black magic marker. These documents discussed public meetings and policy. Ms. Waters could not remember what she had redacted, not even generally what the topic was. She would not admit that Jeff Wolinski was part of her campaign. The judge found that she could not create a substratum of secret communications. It is important to note that prior to this controversy, the County Attorney had advised all Supervisors in a memo, that if they used their personal computers for county business, then communications from those computers would be FOIA’ble.

  6. Loudoun County seems to have a lot to hide. While county insiders are devastated by the court’s rulings, those of us that embrace open government know that the judge was right on.

  7. Now that the election is over I could care less if the emails in question are released. It is quite clear from my perspective that Sally Mann was using FOIA as a political fishing expedition. Saying that using a personal computer to conduct county business makes all correspondence to or from that computer FOIAble is ridiculous over reaching. No one I know was “devastated” by this ruling, and it has been nearly universally denounced by those with more FOIA experience than this particular judge.

    I guess we will now get into an ongoing fight about how to define what “part of her campaign” means. I held a fundraiser for Waters, but I never held any official position with her campaign. Many of our conversations were in regard to political campaign issues, however, and I see no reason that such conversations should be considered part of transacting public business.

    I think it is clear that some type of independent FOIA Council needs to be set up so that independent knowledgable officials can review disputed documents and make such decisions.

  8. Thank you all for the conversation. I haven’t seen a copy of the judge’s decision. Does anyone know if it is available online?

    Some of the dialogue I’ve seen on this says that the judge believes that if one public record email can be found on one computer, that every other email on that computer automatically becomes public also.

    My email address is lbgraves at aol dot com if anyone wants to email me.

  9. It is not available online – I sent you another email asking for a fax number, or post one here.

  10. I got copies of two relevant court orders, and have added the link to one of them at the bottom of the post. (The other one was of a file type that WordPress rejected.)

    Thanks, all.

  11. Pingback: When does a public official become a private person? «

  12. Pingback: Is that document public or private « HoodaThunk?

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