County supervisors in Loudoun County, VA, recently discussed a proposal to change the state's freedom of information laws in light of a court case that seeks personal e-mails from the county board. The controversy in Virginia reflects the broader problem of distinguishing between official and personal electronic records that plagues federal and state governments.

During their Nov. 18 business meeting, the Board of Supervisors in Loudoun County discussed a proposed legislative request to the Virginia General Assembly concerning the Virginia Freedom of Information Act (Virginia FOIA). The measure is part of a larger set of draft legislative proposals the board passed in September, which must be formalized before they are sent to the state legislature. The portion of the draft addressing the state FOIA asks that state information requests for private records be considered finalized upon initial denial.

Unless reworded, the legislation proposed by the county would give board members final authority in denying material from their private e-mail accounts that may include official business. At the November meeting, an attorney hired by the county, Roger Wiley, pressed the board to limit its formal request to seeking greater legislative distinction between public records and personal or campaign records. No final decision was made on what the board's specific recommendation to the legislature would be.

The Board of Supervisors' effort comes in response to a late 2007 Virginia FOIA lawsuit, in which the Loudoun County District Court ruled that local officials must disclose material from their personal e-mail accounts in response to a Virginia FOIA request. In October 2007, Judge Dean Worcester wrote, "It does not meet the purpose for FOIA that the official can decide what is public or private." In Loudoun County, supervisors review their own materials for disclosure. There is no process in state law designating who should review official material in personal e-mail accounts.

The case is currently on appeal, and arguments have been made before state Circuit Court Judge Thomas Horne. In January, Horne indicated that Worcester's decision was too broad and that not every record in possession of a public official is a public record subject to the Virginia FOIA. County attorneys argue that the state FOIA law is too vague because it does not define personal records. Horne has not yet issued a ruling on the larger question of which records fall under the state's freedom of information law. The court is waiting on the complainant to take an action before a ruling can be made.

E-mail Accounts are a Nationwide Recordkeeping Issue

While Loudoun County argues that the public should trust the word of their elected officials, extensive accounts of related issues, arising at every level of government throughout the country, suggest otherwise. Officials in both federal and state governments have been found using private accounts to conduct official business.

Most notably, the federal government lost e-mails between March 2003 and October 2005 when at least 88 White House officials relied on their Republican National Committee accounts rather than official government systems. The time period of the lost e-mails covered the beginning of the Iraq War. The White House responded by stating, "We screwed up." However, some White House aides proceeded to use private e-mail accounts through their cell phone providers to further circumvent public recordkeeping requirements.

The e-mail question also arose during the recent election season, when Alaska Governor Sarah Palin, the Republican nominee for Vice President, was asked to release over 1,000 e-mails in a state FOIA request. According to documents obtained by The Washington Post and The New York Times, Palin used a personal Yahoo e-mail account to conduct official state business.

The Right-to-Know Community, a broad group of more than 320 organizations and individuals, included several recommendations to the incoming Obama administration related to e-mails and other electronic records management in Moving Toward a 21st Century Right-to-Know Agenda. The report notes, "As our society continues to shift to a more electronic age, the proper management of electronic records becomes an increasingly important function of the government." While e-mail retention and review is a complex issue with significant challenges, the public deserves a process that ensures accountability. New technologies elicit the necessity of new record keeping methods and regulations, whether through legislation or greater definition by the courts.