PA's Right to Know does not extend to personal email accounts

Whether a person is elected, appointed or hired by an agency, what's theirs is theirs.  More importantly, what's on their own personal computer (or in their personal email account) is not the agency's ... well, unless it is.

In the third of the Pennsylvania Commonwealth Court's trio of decisions issued last Thursday (1/6/11), the court found that an individual's emails are generally not subject to PA's Right to Know Law, even if they have something to do with agency business.  For personally held emails to be subject to release, they have to be "produced with the authority of [the agency], or were later ratified, adopted or confirmed by [the agency]."  Remarkably, the claim had been that this agency's policy included the use of such email accounts for agency emails.  Apparently, that was immaterial.

The court also reviewed the proper procedure for the agency's open records officer ("ORO") to follow when he or she gets a request for records that might be held by an individual: the ORO is simply supposed to ask the individual if the individual "is in possession, custody or control of a requested record that could be deemed public."  From that point, the ORO has to "determine whether the record is public, whether the record is subject to disclosure, or whether the public record is exempt from disclosure."

Happily, the court decided that the above test -- so long as the ORO is making the decision in good faith -- would safeguard everyone from an agency trying to hide its records.

The case can be found under the somewhat long name of In the matter of K.M. Silberstein Appeal from Grant of Open Record Request, Cmwlth. of PA, OOR, York Twp., and S. MacNeal, Esquire, 814 C.D. 2010.  I suspect it will be shortened to something like In the matter of K.M. Silberstein.  Regardless of the name, it can be found here.

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