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RECMGMT-L  September 2003

RECMGMT-L September 2003

Subject:

Re: RAIN: Court: Public Workers* E-Mail Private

From:

"Roach, Bill J." <[log in to unmask]>

Reply-To:

Records Management Program <[log in to unmask]>

Date:

Fri, 12 Sep 2003 14:35:08 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (67 lines)

>>If the court allows the total discretion by a public employee as to what
is "personal" (and "personal" is not clearly defined by law) AND the
employer is not able to review the contents of an employee's email file,
then you have opportunity for people to play the FOIA game in very
interesting ways.<<
This is an issue of an organization making an open records request.  Records
that are open under this definition are records that deal with the
administration of government business (really condensed definition). Not
every piece of information that is retained by government.  An open records
request covers exactly that, records.  Information that does not have to do
with government business are defined as non-records.  An open records
request is limited to records.  Remember, this is not a discovery action in
a litigation, this was litigation that sought to compel the state employee's
top produce non-record material in response to an open records request.

>>I guess I take an approach that my employer has a fairly broad right to
oversee anything that I am doing on the company's premises, on the company's
equipment, and while I am being compensated for my time by my employer. I've
extended that approach to public employees in that, as a taxpayer, I may not
be an "employer", per se, but the public has a clear right to know how
tax-paid resources are being utilized.<<
This is really a big stretch.  If I follow your reasoning, I should be able
to ask a corporation for the e-mails of one of their employees simply
because I own stock in the company.  While you may pay the bills, you are
not the employer.  The employer of public employees is the government entity
that employs them.  They have the same rights as an employer as any private
employer, including the right to review employees activities and systems.

>>So, while not everything needs to be disclosed in toto, the public should
have the right to know that someone is putting in a full day's work for a
full day's pay. If a public employee is going to school and uses her work PC
to type up a paper, that is clearly personal use. If that is done on
personal time with the blessing of the agency, that's fine and all I care
about is that this is personal, but permitted use of the resource and that
use was on the individual's own time.<<
Investigations of employee wrongdoing are to be handled by the appropriate
authorities, not every public citizen or entity.  If wrong doing on the part
of these employees was suspected, contact your representation, Attorney
General or Civil authorities and ask them to do an investigation.  Don't
file an open records request and then complain when they only send you
records.

>>On the other hand, if I am a friend (and business partner) of the mayor,
the mayor should not be able to classify every email exchange with me as
"personal" because of our friendship and not grant access to an independent
authority with the right to review those emails.<<
These employees did not.  They produced the records that the requestors were
entitled to, business records, they did not produce "non-records".

What is troubling to me is that we seem to applying records position to
something that it clearly doesn't apply to.  I wonder how we would feel if
we were the employees that were in this fix.   Nothing I saw in the article
or related stories even hints that they did anything wrong.  Even the calls
to the employee's other business could have been perfectly innocent.  I find
it hard to believe that after all of the legal activity associated with this
case, there was not a thorough investigation of the allegations.  I would
even expect that the documents not provided were reviewed by both management
and probably the court before the decision was handed down.

>>Checks and balances. That's all I'm suggesting.<<
The checks and balances are all in place.  That is why the judges ruled the
way they did.

Bill Roach, CRM

List archives at http://lists.ufl.edu/archives/recmgmt-l.html
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