In recent years, the battle over government transparency has opened up a new front—private email accounts. The press and transparency advocates have argued that records kept in a government official's private email account should be accessible through state open records requests if they relate to government business. Some government agencies, however, have been reluctant to hand over such records, contending that emails residing in private accounts are not government records. Last week, the Delaware Attorney General's Office became the latest body to weigh in on this issue.

Under Delaware's Freedom of Information Act (FOIA), the Attorney General's Office can be asked to issue an opinion on whether certain records are publicly accessible. The AG's opinions are advisory and not binding. Nevertheless, Delaware courts may look to those decisions for guidance when deciding FOIA cases.

In mid-September, the Delaware AG's Office was asked by a local radio station to assess a county council's refusal to produce emails between the council's president and county employees relating to county business that were stored in the president's private email account. In a prior opinion, the AG's Office had concluded that emails sent between public officials from their private email accounts did not fall within the scope of the state's FOIA because they were not in the possession of any public body.

Last week, the AG's Office reversed course, stating that the prior decision was "wrongly decided," and concluding that the council's denial of access violated state law.

Its decision principally relied on a federal FOIA opinion issued last year by the U.S. Court of Appeals for the District of Columbia Circuit in Competitive Enterprise Institute v. Office of Science and Technology Policy, which required a federal agency to search for agency records that its director maintained in a private email account. The D.C. Circuit observed that just as a government official could not "deprive requestors of hard-copy documents by leaving them in a file at his daughter's house and then claiming they are under her control," the government cannot thwart access to electronic records by conducting business through private email, as that approach would undermine the purpose and efficacy of FOIA.

Applying the D.C. Circuit's rationale, the Delaware AG's Office determined that, because an agency acts through its employees and officials, emails that would otherwise be accessible under FOIA do not lose their status as public records simply because they reside in a private email account.

Courts in other jurisdictions have reached this same conclusion. For example, the top courts of California and Washington have held that emails and/or text messages residing in a government employee's private account will qualify as public records when they are sent or received in the scope of his or her employment. These decisions, in City of San Jose v. Superior Court and Nissen v. Pierce County, reject a rigid, location-based view of what qualifies as an agency record, instead opting for a more functional interpretation of state open records laws incorporating the realities of modern technology.

Nevertheless, at least one court recently ruled the other way. Earlier this year, a Vermont trial court, in Toensing v. Attorney General of Vermont, held that, regardless of their content, emails and text messages from the private accounts of government employees are not subject to disclosure under that state's Public Records Act. The court based its decision on the text of the Vermont statute and the privacy interests of government employees, while also expressing doubt as to whether it would be feasible to force those employees to turn over emails from their personal accounts.

As these recent decisions illustrate, the battle over access to government officials' emails kept in personal accounts will continue across the country. The outcome of these cases could turn on the text of individual state laws and on whether courts apply the same functional approach adopted last week by the Delaware AG's Office.

The attorneys in Ballard Spahr's Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of groups and individuals. The Group helps clients navigate challenging media law issues, across all platforms and industries.

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