{"id":41290,"date":"2012-07-06T08:04:06","date_gmt":"2012-07-06T14:04:06","guid":{"rendered":"http:\/\/www.nmpolitics.net\/index\/?p=41290"},"modified":"2012-07-09T06:47:29","modified_gmt":"2012-07-09T12:47:29","slug":"personal-e-mail-issue-begs-for-clarity","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2012\/07\/personal-e-mail-issue-begs-for-clarity\/","title":{"rendered":"Personal e-mail issue begs for clarity"},"content":{"rendered":"
\"Heath<\/a>

Heath Haussamen<\/p><\/div>\n

Whether personal e-mail accounts should be used for public business and whether such e-mails are public record are issues that beg for clarity. I\u2019d accept a legislative solution or, if anyone wants to take this issue to court, a judicial solution.<\/h4>\n

Martin Esquivel is a N.M. Foundation for Open Government (FOG) Board member<\/a>, a media law attorney, and a 2006 recipient of FOG\u2019s Dixon Award for championing open government.<\/p>\n

He\u2019s also an elected member of the Albuquerque Public Schools Board of Education<\/a> who uses his personal e-mail address as his APS contact.<\/p>\n

That means Esquivel falls into the category of public officials who are using personal e-mail to conduct official business but, I asserted earlier this week, should instead use official e-mail accounts<\/a> so there\u2019s no question they\u2019re creating records that are subject to the state\u2019s Inspection of Public Records Act<\/a> (IPRA). I talked with Esquivel about it, and he believes the situation is more complicated than that.<\/p>\n

First off, Esquivel said he wanted to make clear that he\u2019s not trying to hide anything by using his personal e-mail account. He said it\u2019s \u201cpurely a matter of convenience\u201d \u2013 he\u2019s trying to avoid having to juggle too many accounts.<\/p>\n

\u201cThere\u2019s really nothing nefarious about it,\u201d Esquivel told me.<\/p>\n

He said APS staffers send him notices of events and schedule meetings. They contact him using government e-mail accounts, so e-mails to and from them would turn up in response to a records request to APS for his e-mail. He told me those are \u201cclearly a public record.\u201d<\/p>\n

What about other APS-related e-mails? Esquivel isn\u2019t the only APS Board member to use a personal e-mail account. In fact, it\u2019s not uncommon among local elected officials throughout the state. APS spokesman Rigo Chavez told me board members may communicate with constituents using personal e-mail but they\u2019re not discussing business that might show up on a meeting agenda with each other because they\u2019re aware of the need to avoid rolling quorums that would violate the N.M. Open Meetings Act.<\/p>\n

\u2018Similar to a verbal or telephone conversation\u2019<\/h3>\n

Esquivel told me he wanted to make clear that he doesn\u2019t know APS Superintendent Winston Brooks\u2019 private e-mail address and isn\u2019t communicating with him secretly.<\/p>\n

But there\u2019s no doubt Esquivel communicates with constituents, and at least occasionally with other APS officials, about official APS business using his personal e-mail account. He said that\u2019s \u201csimilar to a verbal or telephone conversation.\u201d<\/p>\n

That sounds a lot like what Gov. Susana Martinez\u2019s<\/a> spokesman Scott Darnell was quoted by the Albuquerque Journal as saying after e-mails showed that Martinez and others in her administration were using e-mail to discuss official business.<\/p>\n

\u201cThere is no law that prohibits the use of personal e-mails, but there are regulations that govern which e-mail messages are public record and which are not,\u201d the Journal quoted Darnell as saying<\/a>. \u201cLike the majority of legislators and other officials throughout the state, we occasionally communicate on personal e-mails when those communications are not considered public records.\u201d<\/p>\n

\u201cThese are the types of conversations that are in lieu of oral conversations,\u201d he said. \u201cThose oral conversations would not be recorded and preserved, and that\u2019s why state regulations do not require that these e-mails be maintained.\u201d<\/p>\n

Esquivel said the difference between what he is doing and what Martinez did is intent. While his use of personal e-mail is for convenience, he accused the administration of using private e-mail accounts to avoid IPRA. He said that\u2019s what was so concerning to FOG about the Martinez administration\u2019s actions.<\/p>\n

\u2018IPRA has not caught up with our electronic age\u2019<\/h3>\n

Esquivel said he has no problem turning over constituent e-mails sent to his personal address.<\/p>\n

\u201cI don\u2019t consider myself a records custodian, but the way I look at it, if Mr. and Mrs. Smith send me an e-mail complaining about the operations at a middle school, is there any expectation of privacy there? I don\u2019t think so,\u201d he said, though he added that one person who feared retaliation was recently upset with him for passing on a complaint to an APS administrator.<\/p>\n

Esquivel\u2019s response points to a problem. He doesn\u2019t consider himself a records custodian. Then who should a request for those e-mails be directed to? Lack of clarity on how to obtain records is a stumbling block to requests for public records. It\u2019s one reason I believe public officials should use public accounts for communications related to their public positions.<\/p>\n

Esquivel said a legislative fix is needed.<\/p>\n

\u201cI\u2019ve been maintaining for the last 10 years that IPRA has not caught up with our electronic age. It was not written for electronic databases and e-mails and everything else,\u201d he said. \u201cSo there are going to be some kinks.\u201d<\/p>\n

\u2018The way we converse now\u2019<\/h3>\n

Another \u201ckink,\u201d according to Esquivel, is what to do about text messages. When they relate to public business, they are arguably records that meet IPRA\u2019s definition of documents that must be maintained and, unless they meet an exemption, made available publicly. But text messaging is \u201cthe way we converse now,\u201d Esquivel said, \u201cand, \u201cIf I converse with another board member, that\u2019s not necessarily a public record. No one could force me to go back and document the conversation.\u201d<\/p>\n

\u201cDoes the fact that it\u2019s in electronic form, text messages, change that?\u201d he asked.<\/p>\n

The same question could be asked about e-mails that Darnell and Esquivel maintain are sent instead of having an oral conversation.<\/p>\n

FOG has urged other government agencies to follow Martinez\u2019s lead<\/a> and require all government employees to use official e-mail accounts to discuss official business. And the Attorney General\u2019s Office weighed in two years ago<\/a>, stating its opinion that the Las Vegas mayor\u2019s e-mails related to public business were subject to IPRA regardless of whether they were sent or receiving using a public or personal e-mail account.<\/p>\n

Esquivel said the idea that e-mails sent to and from his personal account that relate to APS business are or should be subject to IPRA \u201cmerits consideration.\u201d<\/p>\n

\u201cI hadn\u2019t really given that much thought, in terms of preserving those as public records,\u201d he said.<\/p>\n

This from one of the most prominent transparency lawyers in the state. Clearly, the e-mail scandal that has dogged the Martinez administration and spread beyond in recent weeks has caught lots of people off guard.<\/p>\n

Legislative or judicial clarity needed<\/h3>\n

I believe electronic records such as e-mails and text messages already fall under IPRA\u2019s definition of public records, which is \u201call documents, papers, letters, books, maps, tapes, photographs, recordings and other materials, regardless of physical form or characteristics, that are used, created, received, maintained or held by or on behalf of any public body and relate to public business, whether or not the records are required by law to be created or maintained <\/strong>(emphasis mine).\u201d<\/p>\n

You know what that means? If a government employee or official records a verbal conversation, even though he or she is not required to do so, it\u2019s still a record that must be maintained and released publicly unless it qualifies for an exemption to IPRA. Why would an e-mail or text message be any different?<\/p>\n

I don\u2019t really see the gray in the situation that Esquivel does. Still, based on all the disagreement on this issue, I agree with his assertion that the situation begs for clarity.<\/p>\n

\u201cClearly IPRA was not written for this age. And we\u2019re going to have to rewrite it, revisit it and make sure it catches up with the times we\u2019re living in,\u201d Esquivel said.<\/p>\n

I\u2019d accept a legislative solution or, if anyone wants to take this issue to court, a judicial solution.<\/p>\n

Martinez has already signaled a willingness to work with lawmakers on this topic. Her statement<\/a> directing employees under her authority to use official e-mail accounts also states that she \u201cwould be pleased to work with interested parties to ensure that our records statutes and regulations are coherent, strong, practical and consistent across government.\u201d<\/p>\n

House Minority Leader Tom Taylor was quoted in the Albuquerque Journal today<\/a> as endorsing the creation of a policy on lawmakers\u2019 use of personal e-mail accounts, because none currently exists. I hope he and other lawmakers will also be proactive about resolving this issue for all government employees and officials in New Mexico, not just legislators, by clarifying IPRA.<\/p>\n

Haussamen bio<\/a>\u00a0\u2502\u00a0Commentary page<\/a>\u00a0\u2502\u00a0Feed<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

Whether personal e-mail accounts should be used for public business and whether such e-mails are public record are issues that beg for clarity. I\u2019d accept a legislative solution or, if anyone wants to take this issue to court, a judicial solution.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1192,10],"tags":[299,111,107],"class_list":["post-41290","post","type-post","status-publish","format-standard","hentry","category-commentary","category-haussamen-columns","tag-aps","tag-open-government","tag-roundhouse"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/41290","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=41290"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/41290\/revisions"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=41290"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=41290"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=41290"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}