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Public Documents In Private Emails

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It has long been our understanding that a public record is a public record no matter where it is physically located — whether a report sits in a filing cabinet in the office or in an employee’s briefcase at home, for example.

These days we all have fewer pieces of paper in filing cabinets and briefcases and more documents sitting in our laptops, phones — and in the cloud.

But the principle of open government remains the same: to ensure, as the Inspection of Public Records Act states, “that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of public officers and employees.”

So it is the Foundation for Open Government’s position that:

♦ If a document sitting in a public official’s desktop computer at work qualifies as a public record under the definition in IPRA, then it’s still a public record when it’s stored on that official’s personal laptop at home. Similarly, a document relating to public business that is sent or received by email is subject to inspection under IPRA no matter what kind of account — official or private — is used.

♦ This applies to everyone who creates public records in the course of doing public business, including public employees, volunteer members of boards and commissions, and elected officials of representative bodies such as state legislators, city councilors and school board members.

♦ Just as records custodians are responsible for documents that may not be in the right filing cabinet, they are also responsible for public records held in private email accounts belonging to members of that body.

Because storing public records in private email accounts can make it difficult for records custodians to access those records, and because records custodians’ conscientious efforts to retrieve public records from such accounts will inevitably impinge on public officials’ legitimate privacy interests, FOG strongly recommends that all emails related to public business are sent using official accounts.

FOG is New Mexico’s leading voice for transparency in government. It is an independent, nonpartisan, nonprofit member organization which has served New Mexico since 1990.

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