By Justin Silverman

The Bush administration possibly deletes millions of official White House emails. The release of text messages exposes corruption and perjury committed by a former Detroit mayor. Ohio’s attorney general is impeached and then resigns after instant messages and emails reveal an affair between him and his scheduler. 

These cases reflect the growing reliance on electronic communication by public officials and the media’s insistence on accessing this information. Such access can lead to a greater public understanding of elected officials’ work, a needed check on government. But it can also prompt debate between what records should be considered public as opposed to private. Should an official email sent by Gov. Sarah Palin through her private Yahoo account, for example, be open to the public? 

The Reporters Committee for Freedom of the Press recently published a state-by-state guide that helps answer such questions. A few states seem ahead of the curve, making all records regardless of form open to the public. Other states? Well, not so much. Here are a notable few: 

Massachusetts Public records are considered all documentary materials for data, regardless of physical form or characteristic. This includes emails and computerized records. But, like several other states, Massachusetts exempts its governor from this law, shielding him or her from disclosing the contents of any electronic communication. It’s an unfortunate exemption given that the governor is an official whom the media should be scrutinizing most heavily.

Colorado This state includes email in its open records, but only if it bears a demonstrable connection to a public function or the expenditure of public funds. Still, the state requires its agencies to maintain a records management program with documented policies and procedures.

Delware Like most states, Delaware considers electronic communication to be included in its public records. But it goes a step further, determining that emails exchanged between three or more members of a committee constitute a “meeting” and subject to more strict Freedom of Information Act requirements. If these emails are deleted, however, a 2006 attorney general opinion suggested that they cannot be considered public — a disincentive to require better records management.

Florida Email messages made or received by government employees or officials in connection with agency business are public record. Personal email, even if sent on a government-owned computer, is not public.

Idaho Personal emails are not likely public record in Idaho either. In fact, such emails are judged based on “their relation to legitimate public interest.” 

Nevada Emails and other electronic record are only public if they set policy, establish guidelines or procedures, document agency business, certify a transaction or become a receipt. When the Reno Gazette-Journal recently requested emails sent by the state’s governor, however, a judge released only six of 104. Personal records, regardless of content, do not have to be disclosed. 

New Hampshire The Granite State updated its records law last year, but they addresses only “governmental records.” When a party requested information contained in many databases of a state agency, the court ruled that the databases did not constitute an “existing record” and therefore did not have to be disclosed. Further, email messages of individual legislators are not subject to release.

Wyoming ”Private communications” between legislators and constituents are not public; neither is communication between a legislature and its staff. Within these two categories, email is excluded as well.

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