A bill under consideration in the Indiana Senate would make the eMail messages of public officialsincluding school administratorssecret from any prying eyes, despite the state’s Open Door law, which makes public documents, discussions, and minutes available to anybody who requests them.
At issue is whether eMail messages and other forms of electronic communication should be considered “public documents” and, therefore, subject to the state’s open-records law. Supporters of the bill liken eMail correspondence to a telephone conversation, in which there is an assumption of privacy, while opponents argue that the public has a right to know what officials are sending and receiving via publicly financed computers.
According to education law expert Craig Wood, the proposed legislation reverberates on a national scale, as states from across the country consider how their own public-access laws should read in the digital age.
“This is a great illustration of a national problem: that state law is not keeping up with the technology explosion. There’s no state that could not use an overhaul of [its] open-records laws,” Wood said.
A synopsis of Bill 1083 from the Indiana General Assembly says it would ensure that “a public employee’s electronic mail and records concerning a public employee’s internet usage are confidential.”
The bill follows a controversy over the recent publishing of internet records taken from the computers of Indiana school superintendents.
In January, the Indianapolis Star obtained the internet logs and “cookie” files, which track a computer’s history of internet use, from the computers of 49 superintendents in the Indianapolis area and published the results, to the consternation of school officials and education groups.
Star editors justified their actions by explaining that school superintendents are employed byand therefore accountable tothe public.
“[Just as] an employer has the right to look at the eMail of its employees, the public has the right to look at the eMail of public officials,” said Terry Eberle, editor and vice president of the Star.
But state Rep. Jeff Thompson, who introduced the amendment to Bill 1083 that would protect the privacy of eMail communication, said, “My concern about internet files and cookies is that just reporting them does not give a full picture. You have to have the context to understand why some sites are used.”
Thompson, who also teaches physics and chemistry at Indiana’s Danville Community High School, said he drafted the amendment after he was approached by school board members in the wake of the Star’s investigation.
Barely two months after the Star requested internet information from the 49 superintendents, the paper requested eMail information from members of the state legislature.
When the request for legislators’ eMail messages between February 27 and March 13 came on March 14, the Indiana General Assembly sent a unified response to the Star: a definitive “no.”
“There are guarantees in our federal Constitution … that say individuals have the right to petition their legislators for redress of grievances,” said Leslie Hiner, counsel to Republicans in the state House of Representatives.
The Star’s request would have “a chilling effect” on such petitions, she said, because if stakeholders knew their eMail messages to elected officials could be made public, they’d be less inclined to air their grievances via eMail.
The same concerns apply in schools, said Judy Seltz, director of planning and communication for the American Association of School Administrators.
“To shut down eMail as a medium for discussing confidential issuesor issues that may become confidentialwould do damage to the way schools have come to conduct business,” Seltz said, noting that parents often use eMail to discuss sensitive issues with school administrators.
Zionsville Superintendent Howard Hull, one of the 49 superintendents forced to give the Star their internet records, said he approves of Rep. Thompson’s amendment to Bill 1083.
“It’s hard to draw a line between privacy and the public’s right to know,” Hull said. “We don’t want people to think we have something to hide, but there are people who have said they don’t want their messages to me shared with the world … No one would think about tapping my phone, but everyone knows my eMail address, and I view it as the same thing.”
An ‘elephant gun’?
According to Craig Wood, the argument that public officials should have the right to send private eMails about private issues is legitimate. But the language of the Indiana statute is too broad, he argues.
“My problem, when I looked at this legislation, is that [state representatives] are trying to kill a fly with an elephant gun,” Wood said.
The way the language is written would mean that even extremely sensitive matters of the utmost public concern are considered private, he said: “That is exactly what open-meeting laws are designed to prevent.”
The argument that the bill would stifle eMail communication does not legally hold water, said Wood, because federal laws already protect sensitive student information from the public eye.
“FERPAthe Federal Education Records Protection Actalready protects student records information,” he said, adding that the federal law preempts any state laws to the contrary.
So far, however, the bill has not met any opposition among state legislators, passing the House in a nearly unanimous vote on March 5. That leaves the final vote up to Indiana senators.
Some legal experts believe state legislators should amend the bill’s language to say that only non-public communications are exempt from the Open Door law, while specifying that communications among public officials regarding public business are not to be made private. Wood, for one, fears the current wording does not adequately address the issues at stake.
“This is a huge step backwards in [terms of] public accountability,” said Wood of the bill.
April 12 is that last day for final passage of a House bill in the Indiana Senate, where it is eligible for amendment. If Bill 1083 passes the Senate, it goes back to the House, where members can reject or accept the amendments.
Twenty-six out of 50 state senators are needed to vote the bill into law.
Indiana General Assembly
Zionsville Community Schools
American Association of School Administrators