The issue came up last summer after members of the governor's staff were caught communicating about official business on private accounts. Within a few days Gov. Susana Martinez ordered executive branch employees under her control to conduct all business on state-issued email accounts.
Martinez's supporters quickly pointed out that other officials including many legislators and the attorney general also had used private accounts to conduct business.
Here's what FOG has to say.
• If a document sitting in a public official’s desktop computer at work qualifies as a public record under the definition in IPRA, then it’s still a public record when it’s stored on that official’s personal laptop at home. Similarly, a document relating to public business that is sent or received by email is subject to inspection under IPRA no matter what kind of account—official or private—is used.
• This applies to everyone who creates public records in the course of doing public business, including public employees, volunteer members of boards and commissions, and elected officials of representative bodies such as state legislators, city councilors and school board members.
• Just as records custodians are responsible for documents that may not be in the right filing cabinet, they are also responsible for public records held in private email accounts belonging to members of that body.
Because storing public records in private email accounts can make it difficult for records custodians to access those records, and because records custodians’ conscientious efforts to retrieve public records from such accounts will inevitably impinge on public officials’ legitimate privacy interests, FOG strongly recommends that all emails related to public business are sent using official accounts.
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