As my last act as council president last December, I requested that my council secretary place all my council incoming and out-going email in an open public file, available for anyone who wants to see it for whatever reason, without need to file a complicated freedom of information request. The action was quickly embraced and repeated by Councilmembers Denis Law, and Marcie Palmer, and soon all of the council…as we set a new bar in terms of public access to council email.

Today’s Seattle Times article about public email is further evidence that we did the right thing:

Are e-mails public records?
By Maureen O’Hagan

Seattle Times staff reporter

Most workers know the boss can track their computer use: Send too many personal e-mails, visit too many Web sites unrelated to work, and it could spell trouble.

State workers get the same warning. But unlike workers at private companies, their business, by law, is open to public scrutiny. So what happens when a state worker uses his office computer to send e-mails about things like dating habits, weekend plans or family turmoil?

Do taxpayers have a right to see those messages?

State officials are grappling with that question as citizens have begun demanding broad swaths of e-mail records under the Public Records Act, according to Tim Jaasko-Fisher, an assistant attorney general.

“Ten years ago, asking for everything on someone’s computer wouldn’t mean that much,” he said. “Now we’ve reached a point in society where the vast majority of communication, whether it be in a government office or the private sector, is electronic. … Maybe now, people are figuring out that they can make these requests.”

Valerie Witt, a Centralia mother of five, is one of them. In demanding years of e-mails sent or received by a particular Department of Social and Health Services worker, she has placed herself in the middle of a battle that pits the public’s right to know against privacy rights and puts a little-noticed Court of Appeals decision to what could be its first major test. The fact that the state employee is facing possible discipline over her computer use makes the case all the more touchy.

The 2000 court ruling that addressed the issue — by denying the release of a government employee’s e-mails that were intensely private — still hasn’t been fleshed out, so its implications aren’t clear. Witt’s case seems poised to answer those questions.

The dispute began after Witt filed a lawsuit in 2004 in Thurston County claiming DSHS failed to protect their son, Nathan, before she and her husband adopted him and four younger siblings in 1995. Witt alleges it took more than 30 complaints of abuse and neglect before state workers finally removed Nathan from his birth parents.

In addition, she argued that the state failed to get Nathan needed treatment — even after he began hurting himself and others, even after experts said he needed psychiatric counseling, even after the court ordered that he get help. Nathan, now 21, still has problems and is living on the streets, according to medical records in the court file.

One caseworker named in Witt’s lawsuit was Brenda BigEagle, who worked with Nathan when he was a teen. Witt didn’t think BigEagle handled Nathan’s case properly. Witt also said she heard rumors that BigEagle often used her work computer for personal business.

So Witt asked the state for items on BigEagle’s computer, including a list of every Internet site she had visited and her e-mail records.

BigEagle’s lawyer declined to comment on the case.

By state law, all government records are presumed to be open to scrutiny unless they’re specifically exempted.

State workers spent months preparing the records Witt requested. From Witt’s point of view, the results were mixed.

The state turned over a list of Web sites visited on BigEagle’s computer, including hundreds of apparently personal sites dealing with everything from banking to dating.

“She has no business using the state computer” for those Web sites, Witt said. “It gave me red flags.”

As for the e-mails, the state released several thousand pages, but blacked out big chunks of them, citing privacy reasons. Some of the blacked-out information was about other children’s cases. But numerous personal e-mails were, too.

For that, the state relied on the Court of Appeals ruling, which involved an employee of the Spokane prosecutor’s office who was fired after supervisors found she spent too much time on personal e-mails. After a reporter asked to see the offending e-mails, the employee tried to block the release. It turned out that she had been sexually assaulted, and much of her e-mail was related to that.

The court ruled that the content of the e-mails was not a matter of public record. The purpose of open-records laws, the court ruled, is to let citizens scrutinize the conduct of government. The e-mails didn’t have anything to do with government, and releasing them would violate the woman’s privacy.

“It is the amount of time spent on personal matters, not the content of personal e-mails or phone calls or conversations, that is of public interest,” the court ruled.

Jaasko-Fisher, who represents DSHS in the Witt matter, said BigEagle’s e-mails meet the two-part test in the Spokane case: They have nothing to do with the operation of government, and they would be considered “highly offensive” to a reasonable person.

“Largely, until now, the idea [behind the Public Records Act] has been to look at how government is functioning and to hold government accountable,” he said. “What it is not for is to target a particular individual and monitor their doings just because they happen to be employed by the state.”

Greg Overstreet, an attorney specializing in open government who until recently worked for the attorney general, disagrees. He thinks the facts of the Spokane case were so unique that the decision has limited application. What state employees do during work hours by its very nature is related to the conduct of government, he said.

“Unless the e-mails in this case are similar to the horrible facts in [the Spokane case], then DSHS is risking losing a legal case,” he said.

As the state was poring over all the e-mails in question, BigEagle went to another court and tried to block the release, arguing that some of it was “potentially embarrassing to myself and others.” She cited “hundreds of personal e-mails” that should be protected. The judge granted a temporary order preventing the release of about 900 pages of e-mails.

Under the temporary order, the state can’t release those records even if it wants to.

A hearing on the temporary order is scheduled for today. Jaasko-Fisher said he’s hoping that case will be transferred to Thurston County, so it can be consolidated with Witt’s case. No ruling is expected for some time.

Maureen O’Hagan: 206-464-2562 or mohagan@seattletimes.com

Copyright © 2007 The Seattle Times Company

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