David Wilson: E-mails and the rule of law | SteamboatToday.com

David Wilson: E-mails and the rule of law

— As a Colorado attorney since 1986, I remain concerned how and why the DeVincentis e-mails were obtained. Regardless of their content, their disclosure presents serious questions under the law that are getting lost in the discussion over the Board’s future.

The e-mails are not automatically “public records” under the Open Records Act. The Colorado Supreme Court addressed this issue in a 2005 case involving e-mails sent from a county computer between the Arapahoe County Clerk and his county-employed girlfriend. As the court stated, the “possession, creation, or receipt of an e-mail record by a public… employee is not dispositive… The fact that a public employee or public official sent or received a message while compensated by public funds or using publicly-owned computer[s]… is insufficient to make the message a ‘public record.'” Instead, the court focused on the e-mails’ content, holding that if they did not directly address the performance of official duties or the expenditure of public funds, they were private, not “public records,” even if computer use for personal purposes violated county policy.

Here, the e-mails are not “public records” just because they were written on a District computer or because Dr. D acknowledged that they “may” be subject to disclosure. Rather, if an Open Records Act request had been made, they would need to be evaluated based on the Supreme Court’s decision, under which many, if not all, appear to be private, not “open” records.

Statutes, including the federal Electronic Communications Privacy Act (18 U.S.C. 2701-2710) and Colorado Revised Statutes 18-5.5-102, protect e-mails from unauthorized access and use. The Colorado Constitution and case law protect public employees from invasions of privacy.

E-mails stored on a District computer belong to the District, not to any employee or District official. Consistent with the law, District policy presumably does not allow anyone to access an employee’s e-mail at any time for any reason, but only permits access and use for official government purposes. Here, the e-mails appear to have been obtained, at least in part, for the private purpose of attacking Dr. D in retaliation for his views as a School Board member.

Even if an employee had no reasonable expectation of privacy that would preclude the District from disclosing e-mails for an official purpose, it is an entirely different question whether one should have a reasonable expectation that a co-employee or District official would not access or disclose e-mails for a personal purpose. When he wrote them, Dr. D was a district employee, not an elected official. Like every other district employee, he had a reasonable expectation under the law that his communications would not be disclosed or used except as legally permitted (e.g., court order; official investigation, etc.).

Even with their source revealed, big questions remain: (1) why is the district keeping old e-mails from a retired employee; (2) is this practice applied uniformly or was Dr. D singled out; (3) who searched for the e-mails, when, why, with whose knowledge, and at whose direction; and (4) who else was involved in deciding to disclose the e-mails now.

Alleged “civil rights” violations were a focus of last November’s election in Steamboat, and Ritter won the Governor’s race, in part, because a Beauprez supporter used a government computer without permission to dig up dirt on Ritter. Shouldn’t we at least be interested in evaluating whether laws were broken and rights violated here? Although a legitimate explanation may exist for what happened, a claim that the ends justify the means is not one.

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