House passes bill to keep public officials' e-mail private

March 9, 2001

Electronic mail and Internet records of government officials would become closed to the public under a bill that passed the Indiana House of Representatives on Tuesday.

House Bill 1083 passed by 93-1 vote and will go to the Senate. The provision shutting off access to public officials' computer records was introduced late in the legislative process as an amendment, and the public did not have an opportunity to testify for or against the change.

The amendment, introduced by Rep. Jeff Thompson, would close to the public "electronic mail sent or received by an employee of a public agency."

Reports, applications and other undefined correspondence sent to a public agency by e-mail would remain public -- but that could be subject to interpretation.

Bill supporters say it protects privacy in sensitive matters, such as e-mail correspondence from citizens who might disclose personal situations that could be embarrassing if public.

But if the proposal becomes law, it would reduce public officials' accountability to the public and could invite abuses, say those concerned about public access issues.

"It means that as members of the public, we wouldn't be able to go back and check and see what Web sites public officials are visiting," said Steve Key, attorney for the Hoosier State Press Association. The association opposes the proposal.

Last year, a Hamilton Southeastern Schools superintendent was forced to resign because he visited pornographic Web sites. If those types of electronic records became confidential, "there would be no way to verify that from the public's standpoint," Key said.

Taking those records out of the public view could invite a range of abuses, including use of inappropriate Internet sites or conducting personal business on public time, Key said. Also, it might encourage officials to conduct certain business (that should be public) by e-mail so that it would remain confidential.

Making public officials' e-mail private is a major change in the whole philosophy of the Indiana public records law, Key said. In the past, the Legislature looked at subject matter before determining that certain matters were exempt from public scrutiny.

"Now they are not looking at the subject. They are just saying because it is e-mail Š we'll make it confidential," Key said.

The Access to Public Records Law has exceptions now that cover items that don't have to be disclosed. Some of those include the work product of an attorney employed by a public agency; investigatory records of police; and intra-agency advisory or deliberative materials that express opinions and are used for decision-making.

Also, e-mail about an investigation into a personnel matter -- as long as it is part of the staff member's personnel file -- does not have to be released until final disciplinary action is taken, Key said.

Those exceptions also apply to computer records, Key said.

State Sen. Mark Blade, D-Terre Haute, said he's not sure he could support such a measure. "When you are dealing with public computers, I'm not sure e-mail and that type of thing should be private," he said.

He also has concerns about the way the amendment was introduced in the House at the last minute, providing little opportunity for public debate. "I don't like that approach. If you're going to do it, do it up front" to allow for full debate, Blade said.

He does believe the measure has a 50/50 chance of making it through the Senate.

The Indiana Association of Public School Superintendents supports House Bill 1083. Executive director Roger Thornton believes that e-mail conversations between a parent and school officials should be private, similar to a telephone conversation.

Wabash Valley school superintendents have mixed reactions to the proposal to make e-mail and Internet records off limits.

Southwest Parke superintendent Bill Schad said for the most part he doesn't have concerns about releasing e-mail and Internet records to the public. However, he believes e-mail relating to personnel matters should be private.

Rockville Community Schools superintendent Richard Schelsky predicts educators will be cautious about using e-mail unless the law is changed.

"If it's not protected, by and large, most school administrators will go back to using telephones rather than e-mail," he said.

Schelsky does not object to keeping Internet records public.

The proposed changes would apply to all public officials. Bill Bryan, president of the Vigo County commissioners, believes the computer records should remain public.

"I feel it should be open," Bryan said. Public officials shouldn't be taking care of private matters on government-owned equipment, he said. "I'm not doing anything on my computer that is private."

The Society of Professional Journalists is opposing the bill actively. In a news release, the group describes the effort as "an unprecedented bill to revoke Hoosier residents' right to access government officials' e-mail and Internet documents."

Society President Ray Marcano sent a letter to Gov. Frank O'Bannon opposing the bill, writing, "Blocking e-mails would have the effect of making all communication between public officials confidential Š this is a dangerous piece of legislation that would result in keeping the public in the dark."