Every month, my firm sends out the Public Records Press to its clients. With the Press, we hope to assist our clients with educating their staff about the importance of public records compliance. We hope that our clients will post the Press in a prominent place or distribute it to all employees for maximum benefit. The March edition is reprinted below answering the question in the subject line.
The Ohio Supreme Court has already answered “yes” to this question. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391. In addition to seeking emails on some specific topics, the requester sought “all emails, including, but not limited to, any and all emails on private email systems.”
The Court held that public work done on a personal email account creates public records. This means that someone may receive access to your personal email account because you advanced your public business with your private email account. While truly personal emails are not public records, you and potentially others may need to sift through your personal email account to determine what records must be provided to the public.
If you do not keep your email accounts separate, a requester may ask the Court to conduct an “in camera” inspection. To begin this process, a mirror image of the hard drive on your personal and public computers may be necessary. At that time, you would have an opportunity to go through all of your emails to determine whether each email is private or public. These records may ultimately be provided to the Court to ensure that you have faithfully and accurately discharged your obligation to retain public records.
Note that this may apply to other forms of communication beyond emails. For instance, a cell phone financed with public money may create records of the people you call. Itemized cell phone bills and even the text messages you send could be public records. The phone bills themselves are public records that newspapers have targeted in the past.
Carefully consider these cautions when using either your personal email account or your cell phone. You should always be wary of commingling your personal and public life, but especially when you may be creating additional public records.