Case Report – Privacy interest in personal e-mails outweighed by need for openness

On November 19th, a Kentucky court judge ordered the state to disclose personal e-mails exchanged between a requestor’s wife and another former state employee, requested because he suspected the two individuals were having an affair.

The request was for all “Personal non-work related emails between Bobbie Malmer and David Moss dated between 11-01-05 thru 6-01-06.”

In weighing the privacy interest of the affected individuals against the interest in open government, the Court stressed that the individuals had a reduced expectation of privacy because the state had reserved a right of inspection in its acceptable use policy, because it had prohibited personal use on its computer system and because the extent of a state employee’s personal use is itself a matter of public interest. It said:

The privacy exception does not protect public employees from the disclosure of improper or embarrassing personal communications that were made during working hours through the use of the state electronic mail system. See KRS 61.871. It is not an “unwarranted invasion of personal privacy” to disclose such non-work related communications made during working hours on the state computer system. This principle applies with even greater force when the state employees have been informed that all information conveyed through the state email system is the property of the state, and is subject to public oversight and control. In these circumstances, no privacy interest can be legitimately claimed.

Moreover, the Court agrees with the observation of Justice Brandeis that “Sunlight is said to be the best of disinfectants.” The best deterrent for improper use of the state email system for nonwork related activity is to apply the plain language of the Open Records Act to ensure the enforcement of the principle that public employees are accountable for their use of public time and public resources. The public has a right to know the contents of non-work related emails transmitted through the state email system by state employees being paid with tax dollars during working hours. If the subject matter of the email is truly private, it should not be communicated through the state email system.

Personal e-mails sent and received on Ontario public sector e-mail systems are presumptively subject to public access, but will often fall within our own “unjustified invasion of personal privacy” exemption. Although Kentucky’s open records regime appears to have a different emphasis than our own, this is an issue that is clearly relevant here at home, and a similar balancing test will often apply.

An article from the Globe and Mail says the state will appeal.

Justice and Public Safety Cabinet v. Malmer (19 November 2007, Ky.).

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