July 25, 2017

Did you know that, in Milton, an e-mail to a government official’s private e-mail account about a matter outside that government official’s responsibilities and sent to the official in his capacity as a private citizen constitutes a government record that is then subject to open records laws?  If not, then read on . . .

Consider the following scenario.  You have a friend with whom you communicate by e-mail (or text).  That friend serves on one of the City’s volunteer committees.  You may not even know about your friend’s government service.  One day, you send that friend a political e-mail about some City government issue that has nothing to do with the committee on which your friend serves.  And that e-mail includes other news and information you would rather the world not know about.  Did you know that email (or text) is a government record discoverable through an Open Records Request (ORR)?  Well, according to Milton’s City Attorney, such communications are property of the Milton City government and can be made public subject to the redacting of certain personal information (like your personal cellphone number).

How do we know this?  Because the City has already published such communications as part of a massive ORR submitted by Council Member Karen Thurman.  More importantly, the City Attorney has stated that the law supports his views on privacy; we strongly disagree.  This Thurman ORR encompasses e-mail and text communications of around 40 city government officials over a two-year period. This ORR targets members of five committees, who all use private e-mails for their City business.  And these members may be your friends, your business colleagues, or mere acquaintances.  And you might not even know they serve on a Milton City government committee.  However, if you send them a communication about anything that can be construed as “city business,” your communication is a public record, including the parts that do not relate to City business whatsoever.  In Milton, it has now become necessary for citizens to vet their friends, neighbors, colleagues, and acquaintances to determine whether they serve on a volunteer government committee.  And perhaps, volunteers on citizen committees need to include disclaimers on their private e-mails:

“Warning!  I serve on a Milton citizen volunteer committee.  Any communications sent to or from me that can be construed as City of Milton business are considered public records discoverable through an Open Records Request.”

Of course, this de facto policy reeks of Big Brother.  Furthermore, we believe it is patently unconstitutional–a violation of citizens’ privacy.  In Griswold vs. Connecticut, the United States Supreme Court established a citizen’s right to privacy.  In the wake of Griswold, a whole body of case law further defines this constitutional right to privacy.  We wonder how far the City Attorney might extend its definition of “government official.”  For example, if you participate in Milton’s Adopt-A-Road program, are your e-mails now subject to scrutiny by the government if they contain information that might be construed as “government business?”  What nowadays is not government business?

Of course, we believe one purpose of these broad and vague ORRs is to coerce and to intimidate citizens to not exercise their First Amendment political rights:  speech, assembly, and petition.  Some Council Members are increasingly politically vulnerable because more and more citizens in Milton are objecting to their wrongdoing and misbehavior.  Some politicians are looking for ways to silence influential citizens, who (armed with the truth about their wrongdoing and misbehavior) are organizing citizens through petitions and other means.  Unfortunately, the City Attorney seems to be aiding and abetting the efforts of Council Members to abridge citizens’ political rights.  The City Attorney has adopted an unjustifiably broad (and we believe, unconstitutional) definition of a public record that facilitates (and perhaps even incents) politically-motivated fishing expeditions that waste taxpayer money.

So how should the City Attorney process an ORR that seeks to gather all communications relating to “city business” from citizens serving on volunteer committees?  First, the City should provide guidance to ORR recipients about how to respond to the ORR.  In this situation, none was provided; ORR recipients were just forwarded the ORR without guidance.  Specifically, the City Attorney should define “city business” for ORR recipients.  And we believe this definition of “city business” should be narrow—that is, limited to matters before the committee on which a citizen is serving.  Furthermore, communications that fit this definition should be cleansed of information not relevant to the matter before the committee.

We believe a longer-term and better solution to this issue of transparency vs. privacy would be 1) to issue City e-mail accounts to all committee members and 2) to require that City email be used for all City Business conducted by that committee.  This is a simple and clean solution.  All city-issued e-mail accounts would then be subject to public examination and there would be no need to request private or company e-mails.  This would not only solve the privacy problem, but it would eliminate any burden on volunteers to make judgments about e-mail and to provide e-mails.  The City would simply retrieve committee members’ emails from the City server.

(Note:  The City does not notify a citizen who is the subject of an ORR that he/she is the subject of an ORR.  The City does inform City Council Members.  This needs to change.  If you are the subject of an ORR, then you have a right to know that.  This is an issue of good governance and just plain common courtesy.)

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Update on processing of Ms. Thurman’s ginormous ORR. 

Normally, a response to an ORR is required within 3 days.  However, because of the breadth of Ms. Thurman’s ORR, the City had to extend the response period.  Processing is likely going to cost the City a lot of money, because of the time and resources involved.  Due to its sensitivity, Ms. Thurman’s ORR is being processed by the City Attorney, who contracts to the City.  A staff attorney is processing Ms. Thurman’s ORR, so taxpayers will be paying lawyer, not clerk, rates.  Ms. Thurman will be charged for some of the costs of the ORR.  However, because of how fees are computed for processing ORRs, taxpayers will likely be subsidizing a good portion this ORR’s costs.  So you will be paying for a politician’s attempts to dig up political dirt.  And we are sure that these efforts, like a similar ginormous ORR submitted by Ms. Thurman in 2008, will come to nought.  This ORR will be a huge waste of money for taxpayers.

We will be submitting our own ORR to determine what resources were expended on this ORR and the cost to Ms. Thurman and to taxpayers.  We will keep you updated.

Lastly, citizens, please know that we will continue to report on the affairs of our City government at this website.  Our focus is on policy and good governance.  You have a right to know what is going on with your local government.  We appreciate the trust and confidence you have placed in us.  Even if we have to hire lawyers to protect our free speech rights, we will continue to advocate for clean, competent, courageous, and citizen-centric government.