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The Journal Gazette

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Friday, July 12, 2019 1:00 am

Editorial

Privacy concerns

Officials seek to circumvent public-records laws

If the Indianapolis Star prevails in its effort to obtain the Indiana attorney general's private email address, all Hoosiers will win.

Well, maybe not the state officials who conduct government business in secret.

Attorney General Curtis Hill and his chief deputy, Aaron Negangard, appear to be among them. The Star filed suit against the two after the attorney general's office delivered correspondence with redacted email addresses in response to a public records request. The redaction indicates Hill and Negangard were using their personal email accounts for government business.

The right-leaning Judicial Watch filed a Freedom of information Act lawsuit against the U.S. State and Justice departments in 2014, alleging that former Secretary of State Hillary Clinton's use of the same email practices was a deliberate effort to violate federal public access laws.

Alvie Lindsay, the news and investigations director for the Star, said the use of personal accounts could allow public officials to conduct government business in secret.

“We have no idea why AG Hill is using his personal email account or how often,” Lindsay told the Star. “I do believe, though, that the lengths to which he is keeping it hidden raises questions. And we do believe the public has a right to know for what purpose AG Hill is using his private email to conduct public business.”

Government email accounts are public records and subject to public inspection. But the attorney general's office argues the law allows the office to withhold personal emails, including email addresses, to protect the officials' privacy.

Indiana Public Access Counselor Luke Britt sees it differently. He said in an advisory opinion that privacy is forfeited when government business is conducted on personal accounts.

“When using a private email account for public business, a public employee runs the risk of exposure of that personal email address,” wrote Britt. “The Access to Public Records request does not recognize the expectation of privacy for such information.”

Elsewhere, officials recognize the practice of using private email accounts is bad public policy. In North Carolina, for example, the state's public records law applies to all records created or received in connection with the business of a public agency. Determination of a public record is based on its content, not who owns or paid for the medium or device on which it was created.

Frayda Bluestein, a professor of public law at the University of North Carolina, wrote about the requirement on a local government law blog.

“There is no North Carolina case on this issue, but if such a case arose, it's hard to imagine that a court would allow public officials such an incredibly easy way to avoid the strong policy of public access to government records,” Bluestein wrote in 2015.

Indiana legislators, who exempt even their government email correspondence from public scrutiny, are unlikely to fix this “incredibly easy way” to circumvent public access. But the public loses when it is kept in the dark. The courts should see it differently.