Texting, e-mail, Government Employees

Anyone interested in issues surrounding electronic communication by government employees might want to follow a new Supreme Court case.

The United States Supreme Court agreed last Monday to decide whether the Ontario, California police department violated the constitutional privacy rights of a police sergeant on the town's SWAT team when it inspected personal text messages sent and received on a town-owned pager. This is a Fourth Amendment case expected to hinge on whether the sergeant should have had a "reasonable expectation" of privacy.

There is a long and somewhat confusing history of Supreme court decisions on Fourth Amendment issues relating to government workplaces and expectation of privacy. This appears to be the first time the Court has addressed privacy of government employees in the context of data networks.

North Carolina law and regulations are clear on this point. Government employees using government owned equipment for private communications have no expectation of privacy. This principle is similar to that of any other employee using equipment owned by the employer. It means that supervisors get to read your e-mail.

If the Court decides that the sergeant had no "reasonable expectation" of privacy, does that mean his text messages become public records? No. That's a completely separate issue. In North Carolina, under Department of Cultural Resources E-mail Policy (Revised July 2009), if an e-mail message is not created or received as part of the business of government, it is considered non-record material. This includes personal messages, defined as those received from family, friends or work colleagues which have nothing to do with conducting daily government business.

A third issue with e-mails is whether exchanging e-mails between or among public elected or appointed officials violates open meetings law. Under NC law, it is a violation for a quorum of a governing body to discuss public business by electronic means if it is a simultaneous communication, such as a conference phone call. This would seem to apply to a chat room, for example, but not necessarily to sequential telephone conversations or sequential e-mails. Other states have far more restrictive laws. In at least one state, it is a violation to have a simultaneous communication among the majority of a quorum. If this principle were applied to Oriental, that would mean that no Town Commissioner could discuss town business with any other commissioner except in an open meeting. I can't imagine a scheme better calculated to bring government to a screaming halt.

I have always assumed that any e-mails I sent or received concerning town business qualified as public records. Accordingly, I established an e-mail account that I used for town business, separate from my private e-mail account that I had used for more than a decade. I recommended to the town manager more than three years ago that the town establish e-mail accounts for elected and appointed officials. I thought this would improve the management of e-mails that qualified as public records. Even doing this wouldn't prevent the accounts being used for personal messages, spam or unsolicited e-mails, but would allow coordinated administration and preservation of this category of public records. No action was taken on my suggestion until the new manager arrived.

I have now forwarded all of my e-mails concerning town business to my former account: davidcox@townoforiental.com. I no longer have access to the account. It is now the town's responsibility to determine which of the e-mails is a public record and to manage their retention and disposition.