Public Records and Electronic Communications

Today’s burning question: If a firefighter’s personal device such as a cellphone connects to a wireless network provided by a governmental agency, is the information transmitted automatically subject to the state’s public records law? In other words, can someone request a copy of an email or text message that a firefighter sends using the city’s wireless network?

Answer: Whether an electronic communication is a public record has nothing to do with how it is transmitted. It is really about whether the underlying information being conveyed meet’s the state’s definition of a public record.

All 50 states and the federal government have laws that make certain records open to public scrutiny. These laws have different names: public records law, open records laws, freedom of information acts, and sunshine laws. Generally anything that a public employee creates or receives in the course of business will qualify as a public record, including:

• Documents
• Reports
• Correspondence (letters, emails, text messages)
• Recordings
• Photographs

The key is that the information must be created or received in the course of the public’s business. Personal correspondence that is unrelated to the public’s business is generally not a public record.

So, whether an electronic communication sent by a firefighter over the city’s wifi network is or is not a public record will turn on whether the message relates to the public’s business. If the firefighter emails his captain information related to a fire they recently had, the email may very well be subject to disclosure if a public records request is made. If the email was about a golf tournament unrelated to official business it likely would not be subject to disclosure. The fact the message was transmitted via the city’s network is irrelevant.

Also, simply because a message is transmitted through a certain wireless network does not mean that the message content is necessarily copied or archived. Fire departments that have wireless networks that do in fact archive messages that are transmitted through it need to have a policy that informs users of this fact in order to stay in compliance with the Electronic Communication Privacy Act of 1986, and its state law equivalents.