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Mass Firefighter’s Work Email Use Escapes Election Law Citation

Fire department email accounts pose a number of hidden traps for firefighters. The most common email related cases involve violations of public records laws (discussed below) – but a recent Massachusetts case raises an unusual issue: the use of a public email account to support a candidate.

Falmouth firefighter Russell Ferreira recently came under the scrutiny of the Massachusetts Office of Campaign and Political Finance (OCPA) over an email he sent in support of the candidacy of former fire chief Paul Brodeur for selectman. Ferreira is also the President of the Falmouth Firefighters, IAFF Local 1397.

Mass campaign laws prohibit public employees from using government emails or computers to support a candidate. Town clerk Michael Palmer alerted the OCPF to the violation when he discovered the email.

The OCPF investigated the case and determined it did not warrant further administrative or criminal action. The Cape Code Times quoted a letter from OCPF director Michael Sullivan to Ferreira that justified the decision not to take further action by saying: “When you learned from OCPF that the email did not comply with the campaign finance law, you immediately sent a retraction to all persons who had received it.”

More on the story.

As for the more common type of email problem (public records laws) – most states consider a government employee’s email to constitute a public record, unless it is somehow subject to a specific exception. While some states recognize an exception for “personal” emails, states differ in what they consider to be “personal”. The intent of the employee who wrote it may not matter.

For example, some states consider any email from one employee to another to be a public record, even if it is about a non-work related matter between the two employees. Others states take a more liberal approach.

A related issue is the fact that if an email constitutes a public record, it is subject to the applicable record retention requirement. In other words, besides the fact that the public has a right to examine an email that is a public record, the employee and the department are responsible to retain the email for the duration of the applicable record retention period.

Needless to say, you might want to think twice before you press send!!!

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Comments - Add Yours

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  • Mark

    If I check my private email on a city computer while on duty, does my email become in any way public record?

  • http://firelawblog.com Curt Varone

    Mark

    It is possible for an email sent via a personal email account to become a public record. However, merely sending it via the FD’s internet access, or reading it on a FD computer, would not automatically cause it to become a public record. There would have to be something more that makes it work related.

    Each state in entitled to set it’s own rules on public records. Most states say emails that are of a personal nature are not public records, whether sent via personal email accounts or work related accounts. As a general rule, only work related emails are subject to the public records law.

    The problem is someone may send an email intending it to be “personal” – but the rest of the world may see it differently. For example – a male supervisor who harasses and/or stalks a female subordinate may send her what he considers to be personal emails asking for a date, sexual favors, etc. Those emails will likely be considered to be work related…

    Its actually quite a quagmire, but hopefully you get the idea.