Email deemed public, but kept private

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By Tom Kearney

So, here’s the deal: The city attorney, a man, oversees a consultant, a woman, who’s been hired to help rewrite the zoning laws.

The lawyer approves her consultancy contract, signs her pay vouchers, and supervises her work. She makes a lot more money as a consultant than she would as a city employee. The project doesn’t go well; it’s past deadline and over budget. The lawyer and the consultant develop a close personal relationship.

At the same time, the city’s interim administrator – she works with the committee that oversees the city attorney contract – also develops a close personal relationship with the lawyer.
The details of these relationships, and their built-in conflicts of interest, are all told in hundreds of e-mails the three people sent back and forth, using their city government e-mail accounts. The e-mails are stored on the city government’s servers.

All this happened in Burlington, Vt.

The Burlington Free Press wanted to know what was in those e-mails, and what they said about how the city government was functioning.
The city stonewalled. Some e-mails involved labor negotiations, it said; others fell under the lawyer-client privilege. Still others, the city said, were “purely personal,” and outside the scope of the newspaper’s request.
The newspaper sued. In a ruling dated Oct. 3, Judge Brian Grearson ruled in Washington Superior Court that the newspaper was right, but will get none of the e-mails.

The ruling hinges on a balance of competing interests, and Judge Grearson leans more heavily toward privacy than other courts have done.
The decision says all the things journalists want to hear about the people’s right to know. The judge rejects the city’s argument that purely personal e-mails are not public records; he acknowledges there is high public interest in conflicts of interest that would affect the functioning of government; he says the people have a right to know.
But, after reviewing all the e-mails himself, Judge Grearson ruled they will stay secret. “None of the sealed e-mails includes any information (other than the mere fact of the relationship) that a reasonable person would think is evidence of wrongdoing, or that connects the personal information to potential wrongdoing. … In these circumstances, there simply is no demonstrable basis for more probing public scrutiny of these individuals’ personal communications.”
The court described the ruling as a split decision: The Press’ public records request is granted in part and denied in part.” That is, the newspaper wins on principle, but loses on the details.

Different in N.H.

I contrast this ruling with a New Hampshire case in which I was involved while executive editor of The Keene Sentinel.
In 1990, a Republican congressman was running for re-election in a district that hadn’t elected a Democrat since 1912. He was running on a family values platform. Meanwhile, he was in the middle of his third divorce.
I wanted to know if the divorce files said anything about his family values, and sent a reporter to the courthouse to find out. However, both case files had been largely sealed from public view. In one, we got a few facts, such as the date, the judge, the names of the parties. In the other, all we got was a docket number scrawled on a yellow Post-It note.
We sued, contending these files were court cases, and court cases must be open for public inspection unless there’s strong legal justification for sealing them.
We lost in the lower court, where the judge called me “a panty-sniffing ghoul” and accused the newspaper of being a sensationalist scandal-monger. But two years later, we won big in the N.H. Supreme Court, and “Petition of Keene Sentinel” remains the gold standard in New Hampshire for keeping court files open to the public. Before sealing a file, a judge must explain in detail why the seal is being applied, and apply it only to those parts of the case that qualify. Further, in the public portion of the file, the judge must explain the decision to seal in enough detail to allow a challenge.
The ruling is based on many of the principles Judge Grearson outlined in the Burlington case: The court is a public institution, people have a right to see how the courts work, and the best way to do that is to see how the courts work in difficult circumstances.
But in New Hampshire, the court opened the files; in Vermont, the e-mails stay secret.

Gathering vs. publishing

The Free Press may appeal.
If it does, I hope it stresses the difference between gathering and publishing information. Most people have no idea how many dry holes a reporter can drill before striking a news story.
Every journalist has his or her snitches, birdies who sing in their ears about “great stories.” I used to have a snitch who was wrong nine times out of ten, but that tenth time was gold. As a result, I had to check out every tip he gave me, in case it was the good one. Nine times out of ten, I wrote nothing.
Same with the congressman’s divorces. We said that, if the divorce files said nothing that countered the congressman’s family values platform, we would publish nothing. After we won in the Supreme Court, we looked at the files. Nothing in them was newsworthy. We published nothing.

That’s what the Vermont decision overlooks: The difference between gathering and publishing information. First we find out what’s true, and then decide if it’s news. In the Vermont case, the court took on that job for itself – and that’s wrong.

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