Plugging the gaps: the fight to define what is a public record

The rules and retention of public records need reinforcing at every level of government

Written by Beryl Lipton
Edited by JPat Brown

The reality of public records is rife with a lot of gaps and walls. The walls we hear about: stonewalling, of course, and the delays, the fees, the deliberate dodging and the clumsy slip-ups.

But the gaps are harder, by their very nature, to get a grasp on. It’s what makes them so useful if you’re exercising some professional rule skirting.

In the wide world of records, nowhere has this been more obviously the case recently than email. Email, a concept which after twenty years is still apparently refreshingly novel to some agencies, has been a favorite medium to bend the rules on.

It wasn’t until a FOIA lawsuit by Judicial Watch that Hillary’s use of another email server came to light in a big way. Henry Kissinger offered something of a precedent when he chose to keep his recordings off-site and away from FOIA before sending them off for selective access at the Library of Congress. And surely many other officials throughout the ranks use or have used at some time some form of private email to conduct some government business, maybe for relatively innocent reasons, accidentally or for convenience.

Some have argued that nefarious secret communications will transpire even with public access to official email and that the practice of including them under public records law is unnecessary. Others, most recently a court in Washington stand firm on the applicability of public records law to emails. It doesn’t matter what server they’re on, nor how much power the possessor has; whatever expectations of privacy might exist under the Fourth Amendment in another context aren’t applicable when it comes to talk of public business.

Where the law fails to say, the courts must decide, and that, of course, leaves some room for human opinion. The question: “What is a record?” needs to be asked and defined every time a new medium comes up, and policies need to be put in place to govern. Record retention schedules govern the length of time and means of storage for the variety of records - paper, emails, audio, video, and on and on - that an agency might hold. They also dictate when it is okay to destroy a particular records.

Without specifically imposing such guides, calling foul later will be even less effective than most current appeal mechanisms.

This isn’t a concern limited to FOIA or the federal branch. Just as easily and with maybe greater effect, local relationships with corporate colleagues can transpire outside of the sphere of public records, partially because no real rule says that they can’t or that their messages are subject to retention. Sure, there’s no guarantee that officials won’t go through the trouble of circumventing those too, but at least it will be clear that there was a decision to disobey there.

Body camera footage poses a new practical challenge to law enforcement agencies, in terms of the space and energy needed to store or sift through it, and as law enforcement adopts the cameras, it will be important for them to work out their retention practices as well.

Text messaging, too, is an often undocumented area that allows agency officials and business representatives to casually communicate without oversight, though it can be easy enough to install a system.

Public records advocates did a double-take yesterday when Mississippi lawmakers vowed to keep private the contracts entered into by the House of Representatives, a policy implemented in the wake of a Mississippi Today public records request. It’s taken for granted that contracts should be public record, but with records laws variously applying to the legislative and judicial branches, there is room to maneuver when they’d rather not discuss the details out loud.

Vigilant demand for clear and effective public records laws is no nebbish crusade. The failure to construct easy defenses against corruption would be foolhardy for a country so insistent on restoring its greatness.


Image via Wikimedia Commons and is licensed under CC BY 3.0