Any employee who has answered a work email during dinner or taken a work call from the sidelines of a soccer field knows the line between work life and personal life is quite blurred. Just as work can intrude upon personal time, one’s personal communications can sometimes happen from work. For public employees whose emails are subject to New Mexico’s Inspection of Public Records Act (IPRA), this is particularly challenging.
Records, including emails, become “public records” under IPRA when they “relate to public business.” In a recent article and editorial, the Journal took issue with its request for all of Paul Krebs’ sent email from April 1 to Aug. 14. Mr. Krebs retired from his athletic director position on June 30 but kept his email account – a benefit available to UNM retirees.
After UNM’s IT department retrieved the requested emails, which were separated into nine batches, UNM’s record custodian and I began to review them. I came across what appeared to be an email between Krebs and his personal attorney, Gene Gallegos. This type of communication is potentially covered by the attorney-client privilege; Krebs holds the privilege in communications with his counsel. As an attorney myself, I was ethically obligated to notify Mr. Gallegos that I had come across his client’s privileged communication, and that I suspected there would be more in the volume of retrieved emails. He and I determined that the most appropriate path was for the record custodian to search for Gallegos’ name in each batch, then forward batches containing his name to his office so that privileged communications could be removed. Six of the nine batches were sent to Gallegos totaling 1,330 pages; 1,290 pages were returned. Forty pages were removed as privileged. All of the emails sent to Gallegos have been preserved.
The Journal has asserted that this somehow resulted in UNM depriving the public of its right to inspect Krebs’ emails. This is simply untrue. The public has a right to inspect public records, but an individual’s personal communications about matters unrelated to public business are not public records. In other words, if an employee sends an email from a UNM email account about meeting a friend for lunch or to HR about her insurance plan, they are not public records because they do not relate to public business. If that same employee sends a text message about business matters from a phone that she pays for herself, the text is likely a public record.
The Journal’s editorial included input from Peter St. Cyr from the Foundation for Open Government, who said “it’s not even clear” whether an employee’s attorney-client privilege exists when the employee uses his public employer’s email. But this is not the question – the question is whether an employee’s personal communication with anyone about the employee’s personal business is a public record. The law is clear that it is not. Regardless of the application of the privilege, there is no right to inspect a non-public record. In the absence of legal clarity, I am ethically obligated to avoid intruding on the privilege of a person represented by counsel.
The editorial also mentioned UNM Policy 2500: Acceptable Computer Use, but declined to mention that the policy also states that “Users of University computing services … shall respect and protect the privacy of others.” UNM did not “flout” its legal obligation under IPRA. Instead, after removing the personal communications that came mostly after Krebs’ retirement, UNM produced 1,116 pages of email to the Journal. It is a privilege to work for New Mexico’s flagship university, and while any employee would be wise to exercise caution in emails sent from the employer’s email system, UNM recognizes that it is not “boneheaded” to balance its commitment to transparency with respect for its employees’ personal affairs.