Sunday, June 24, 2012

Sebring's Emails, Part II

June 24, 2012, 11:00 a.m.

How Private Emails Become Public Records

Nancy Sebring, former Superintendent of the Des Moines, Iowa, Schools, resigned after the public disclosure of personal emails she had sent to a lover.

The first blog entry regarding this case lays out more of the details that therefore need not be repeated here. "Sebring's affaire d' e-mail: Spotting the Issues; Was This Really an 'Email Policy' Resignation?", June 14, 2012. If you are interested in this case , and haven't yet read it, you might want to start there.

At the outset of that blog entry I asked, and then answered:
So what are "the issues" in a school superintendent's use of school computers and Internet access for personal messages? Initially, I see five categories of issues. (1) Inappropriate behavior in general (without regard to where, with what, or when). (2) Use of an institution's offices, facilities and equipment (whether government, schools, or private firms) for personal purposes. (3) Devoting time to other than assigned tasks during "working hours." (4) Unauthorized, or otherwise inappropriate, behavior with regard to the use of an institution's facilities. (5) Public records requirements. (Are "personal" emails "public" records?)
It then goes on to explain why that blog entry focuses on the romantic relationship, or "affair."
As a cyberlaw professor I'm drawn to the e-mail-related policy issues. But my initial reactions are that they were really peripheral to what happened in this case. And since a blog entry can't handle much more that this discussion of "issue 1," the rest will have to wait for later.

Sebring alleges, and no one contests, before the relationship was known it did not diminish the quantity or quality of her performance for the district. (Indeed, it may have increased both.) The added cost to the district of her computer use for personal purposes was so small as to be incapable of calculation. She was not engaging in hacking, cyber-bullying of employees, running a private business from her office, or other computer misuse of that nature.

Indeed, had her "personal use" been limited to innocuous messages involving rescheduling luncheons, or sharing items with family members, it is highly unlikely she would have been fired or found it necessary to resign.

Similarly, had she used a handheld device and an e-mail account unrelated to the school district, if the relationship and comparable private messages became public she might have had to resign anyway.

No, I think the media coverage, and resignation, resulted from the content of the messages, and the relationship they revealed, not the computer she used to compose and send them.
Nonetheless, that still leaves a number of issues involved in email regulations that were postponed in the first blog entry. (Throughout, I am using the word "agency" to include any unit of government in Iowa: e.g., school boards, University of Iowa, city councils, State and county agencies.)

(1) Behavior. Various modes of electronic communication (e.g., cell phones, email, texts, and tweets) are now so interwoven into our daily lives that they are likely to be involved in some way in almost all forbidden behavior. Accepting bribes from potential agency contractors, supervisors engaging in sexual harassment of employees, embezzlement of agency funds or theft of expensive agency equipment, awarding contracts or jobs or promotions to relatives and friends, running a private business from inside a government agency, may -- like Sebring's relationship -- come to light because of records of electronic communications. Violations of agency limitations on private use of computers may also be involved, and may even be cited as an added offense. But the primary concern involves the behavior, not the associated means of communication.

(2) Personal use of government equipment. How serious is the personal use of government computers?

The answer turns in part on what is being used. To illustrate with extremes, every time a government employee uses the bathroom in a government building they are engaged in "personal use of government property." Collectively, moreover, the paper supplies and water used by employees become a not insignificant incremental taxpayer expense. Using a government-owned vehicle for a family vacation is also a "personal use of government property." Few would think the first worth consideration. Most would think the second a serious felony.

So merely describing something as "personal use of government property" does not, alone, resolve whether the use is prohibited or permissible.

Moreover, there is no universal principle. To find the answer for a specific use by a specific employee in a specific agency one must search the relevant statutes, administrative regulations, union agreements, individual employee contracts, and institutional culture. Those standards vary from agency to agency (which is why its important for employees to find out what they are).

Consider the difference between the standards of the Des Moines Schools and the University of Iowa with regard to employee use of government computers. The Des Moines Schools' regulations do not (expressly) provide for private use. The University of Iowa's regulations do:

Des Moines Public Schools Policies and Procedures, Series 700 - Business & Operations, Code 737, "Use of School District Vehicles and Equipment," provides that use of school "technology" "in no event shall . . . be used by school employees . . . for private or personal gain." It more generally provides that use "shall be limited to school district business and related school district interests only." (On the other hand, it expressly provides, in Code 750, for "Public Use of School Facilities;" uses that are clearly not "school district business.") Des Moines Public Schools Policies and Procedures.

By contrast, the University of Iowa's regulations speak approvingly of "modest personal use" of technology that "should be used primarily for University-related . . . purposes." They provide that "personal electronic files . . . are not ordinarily . . . 'public records.'" They speak of "Individual Responsibilities" to "avoid excessive personal use;" that "personal use . . . should be kept to a minimum." Of course, like the Des Moines Schools, the University's regulations expressly provide that computers "shall not be used for personal commercial gain." University of Iowa Operations Manual, Chapter 19: Acceptable Use of Information Technology Resources (2002):

Agencies have a wide range of discretion in terms of what they can insist employees do and not do -- and the punishments for violations. Given school boards' current enthusiasm for "Zero Tolerance," presumably they could if they wished make even the most momentary, single personal email a firing offense. Whether that would be a wise policy is another matter.

Google provides its employees free gourmet food, fitness center, yoga classes, speaker series, in-house doctor, nutritionist, dry cleaners, massage service, personal trainer, swimming pool and spa. "Perk Place: The Benefits Offered by Google and Others May Be Grand, but They're All Business," March 21, 2007Knowledge@Wharton.

As the headline indicates, these companies consider such perks and respect for employees to be good business, practices that pay back far more than they cost. It's unlikely such companies would punish, let alone fire, an employee who used company equipment to send a personal email from company equipment.

It is my guess (unsupported by exhaustive data) that most progressive and successful institutions are closer to Google than the Des Moines Schools -- usually settling on an email policy that is some variant of the University of Iowa's policy.

(3) Private tasks during working hours. Although in a great many institutions the mere fact that an email was personal ("Honey, don't forget to bring home a gallon of milk tonight") would not be grounds for dismissal, excessive use and other abuses are another matter.

If an employee is spending three-to-four hours a day on their Facebook page, doing online shopping, or worse still running an online business from work, this is not so much a problem of "personal use of government equipment" as it is a failure to do one's job. It is the equivalent of leaving work early every day, abusing "sick leave," or watching sports or soap operas (whether online or on a TV set) for hours while at work.

On the other hand, some agencies, or supervisors, make clear to employees that they will be judged on their accomplishments, not the number of hours they spend "looking busy." To some degree, once quality work is regularly completed and submitted, and the employee's absence will not impose additional burdens on other employees (or deprive visitors of services), it's not necessary to stay until the final whistle blows.

This is especially true of agency administrators -- school superintendents, university presidents, or agency heads with various titles. They are, in some measure, charged with writing their own job descriptions. A university president may decide his most important task is to travel widely, meeting with potential donors, in an effort to increase the school's endowment. A newly appointed agency head, brought in to clean up prior scandals, may choose to spend a disproportionate amount of her time making speeches, and doing radio and television interviews. A college dean may think his most important task is to find and interview potential new faculty.

They may put in sixty or more hours a week at all hours and on weekends. (As we used to say in Washington, "Thank goodness it's Friday; only two more working days until Monday.") If they are skilled, genuinely productive, working hard at their job, trusted with the discretion with which they've been provided, it is not unreasonable for them to try to squeeze in "personal" time, phone calls, and emails whenever they can -- including during what is, for their nine-to-five employees, "working hours."

(4) Unauthorized computer use. If an agency employee is negotiating the terms of a bribe with a potential contractor, it is the bribe, and the negotiation, that is the offense. The same is true with sexual harassment of employees by supervisors. That an agency computer was used in the process is close to irrelevant insofar as the agency's computer use policies are concerned. The bribe, or sexual harassment, could have been engaged in without any use of agency technological equipment.

On the other hand, there are some forbidden activities that are dependent upon computer use. The University of Iowa's Operations Manual, "19.4 Individual Responsibilities," lists ten categories of examples. Some include sending spam, destroying files, inserting viruses, denial of service attacks, unauthorized access to electronic files, violating software licensing agreements, campaigning for political candidates, personal use that overburdens a computer network.

There are also numerous federal and state laws that prohibit activities that often, but need not, involve the use of computers, such as the unauthorized release of students' records or a teaching hospital's medical records.

(5) Public Records. Of the five categories of issues, and putting aside the first, discussed in the first blog entry, the fourth seems entirely inapplicable to Sebring. The third is probably inapplicable. If the Des Moines Schools apply a "Zero Tolerance" no personal use of school computers policy to all employees, then Sebring would seem to have clearly violated that standard.

But the primary issue, for her, her lover, their lawyers, the Des Moines Register, its readers, the school board, and Iowa District Judge Robert Hanson, has been whether these extremely private, personal emails should be treated as "public records" under the Iowa Public Records law (Iowa Code, Chapter 22). For the Register's take on the Judge's decision, see Mary Stegmeir and Jeff Eckhoff, "115 new Sebring emails released on judge's ruling; He refused to block them and also denied her former lover's bid to keep his name private," Des Moines Register, June 23, 2012.

Judge Hanson held that the personal emails, including the name of Sebring's lover, were "public records" under a literal reading of the Iowa law. Was this ruling, as appellate courts sometimes say, "clearly erroneous"? I don't think so. I believe it is a possible reading of the law.

I just think it is not compelled by the language of the Act, that it runs contrary to some provisions of the Act, directly contradicts the legislative history and purposes of the Act, and is not representative of the facts in most of the cases involving that Act. (That is, most public records cases involve records that do involve government, as distinguished from personal, business.)

It's true that the Act does not expressly provide that "private romantic or sexual emails between an agency employee and a non-employee shall not be considered 'public records.'"

However, the statutory language that is employed does not compel the conclusion that every scrap of paper sitting on a desk (such as a grocery list), and email (such as a rescheduling of a personal lunch), become "public records" merely because they are inside a government building or were key-stroked into a government computer.

Indeed Section 22.7 itemizes some 64 categories of paper and other records that are "confidential" and need not be treated as public records. So it is not a unique, unheard-of concept with regard to "public records" that some documents held by a government agency are not available to the media and public. That much is clear. Thus, if and when emails that are clearly private in nature, having nothing to do with what's normally thought of as government business, are found not to be public records they would not be an unprecedented first instance of such a category.

Moreover, at least some of these categories seem to reflect a consideration for personal and other privacy and an awareness of the personal harm that can result from unwarranted revelations. Examples include personal student records (Section 22.7(1)), medical records (22.7(2)), trade secrets (22.7(3), those that "would give advantage to competitors and serve no public purpose" (22.7(6), "personal information in confidential personnel records" (22.7(10) and (11)), records "which . . . would reveal the identity of the library patron" (22.7(13). There are many more.

(Of course, one must note the distinction between documents that (a) an agency must not reveal, (b) need not, but may reveal, and (c) must reveal. Section 22.7 begins, "The following public records shall be kept confidential . . .." That sounds like (a). However, it then declares, "unless otherwise ordered by . . . the lawful custodian of the records, or by another person duly authorized to release such information," which sounds much more like (b).)

So let's look at the purpose of the law, or its legislative history. Why do we have public records laws?

Public records laws (like open meetings laws) are designed to provide citizens (most often by way of local newspapers) an understanding of the basis for, and the process for developing, laws, administrative regulations, public policies, and other rulings and decisions that impact the public. It's not a case of (as broadcasters used to argue when I was an FCC commissioner), "the public interest is what interests the public." Of course the public is interested in juicy, National Enquirer-style gossip about sex (or other personal matters).

The inquiry needs to be, "Does the public have a need to know, or benefit from knowing (in their effort to understand law and policy), that an agency employee texted her child a reminder to go to his music lesson, or a fellow employee where to meet for lunch, or her partner a grocery list?" Or, in Sebring's case, a romantic or sexual message to a lover? I think not.

There are certainly some electronic messages that, while personal, do involve government business. Email exchanges regarding how a contract can be awarded to an otherwise excluded high-bidding friend are clearly not intended to be public, and yet they are equally clearly "government business." They are the kind of thing the Act is designed to make available to the media. Emails involving a romantic or sexual relationship (at least one that does not involve sexual harassment, relations between supervisors and employees, conflicts of interest, or otherwise of public significance) are not, in my judgment, what the drafters of the Act had in mind. Nor does their revelation serve the purposes of the Act.

Given the language of the Act (in general, along with Sec. 22.7 in particular), what the legislative history contributes to understanding the purposes of the Act, the issues in virtually all of the cases in which it has been interpreted, it seems to me quite clear that the Act is not intended to provide the public with personal scandal and gossip in no way related to government business.

Note that none of this has anything to do with an agency's ability to discipline or discharge an employee because of their use of agency computers for personal messages -- whether because of the content of those messages or because of the mere fact agency regulations forbid any employee use of computers for personal messaging.

For purposes of "public record" analysis, the sole question is whether such personal, private messages should be treated as "public" when they are requested by the media (or members of the public) under the public records Act. Whether they should lead to discipline raises an entirely different set of issues.

That's not to say it is a smart thing for a government employee to send personal emails from government computers -- least of all personal emails that are sexually explicit. Nor is it to say employers should be forbidden (or permitted) to monitor employees' emails to see if there is an over use of personal messaging. Those are other separate issues.

It is just to say that -- insofar as whether private messages are public records -- it is a little difficult to argue (not impossible, just a little difficult) to say that (a) someone should be fired for their private use of public property, and then argue that (b) this "private use" has somehow attained the status of a public record.

Finally, because this blog entry is an attempt at balanced analysis of the Public Records Act (among other things), devoid of emotional appeals, I have deliberately not dwelt on issues of compassion and decency in human relations, or the matter of journalistic ethics. So I will simply close with these excerpts from the Society of Professional Journalists' Code of Ethics, and leave it to the professional journalists to ponder their relevance to the media disclosures in this case:

Minimize Harm

Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect.

Journalists should:

— Show compassion for those who may be affected adversely by news coverage. . . .

— Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.

— . . . Only an overriding public need can justify intrusion into anyone’s privacy.

— Show good taste. Avoid pandering to lurid curiosity.

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1 comment:

Julie VanDyke said...

I just cannot bring myself to say or believe that these emails were public records that needed to be published word for word in a newspaper. Thank you for putting it into such a clear argument - I have been trying to say some of this, in discussions with others on this particular story, for weeks.