Emily Heffter of the Seattle Times describes the concern that open government advocates in that state have after the January 18 Superior Court ruling by judge Julie Spector. In her ruling, Judge Spector determined that e-mails sent and received via work computers are not public, because they were not about Seattle Public Schools business.
What the e-mails were about was union business. Heffter quotes Rich Wood, a spokesman for the union:
“They pertain solely to union business, not anything to do with the operation of the school district itself.”
Open records advocates (me included) would say that in a such a case, what matters is that the records were generated on public computers. However, the union’s attorneys successfully argued that in order to be public, e-mails must pass a “three-pronged” legal test:
- be written,
- be in possession of the district
- have to do with district business.
The records were originally requested by a parent in the school district. The school district was prepared to release the records, when the union intervened. At that point, the school district essentially threw up its hands and said it didn’t care–which meant that no particular legal defense of making the records public was made in court.
Around the country in 2007, government employees who shared uninhibited sexual thoughts via email went through the indignity of having their words exposed through open records request. I can’t think of many cases in which those sexual imaginings had much to do with government business. Under Judge Spector’s ruling, those e-mails would have remained private.
Of more political interest are those times when government employees use government resources to pursue their private political interests–that is, when they engage in what is referred to as “electioneering” on the taxpayer’s nickel. It seems to me that under Judge Spector’s theory, these e-mails would also be considered private–precisely because they are not about the business of the city, county or school district where the government employee works who is sending them. And yet, surely, it ought to be knowable to the public when this type of electioneering occurs.