E-mail: public or private?

[Andrew Higgins]

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   E-mail: public or private?
   
   Friday, August 27, 1999 --  (BOSTON AP) - It used to be any written
   correspondence with a government official was considered a matter of
   public record that the public had a right to review.
   
   But what about e-mail? Seven Boston city councilors are fighting
   vigorously to protect e-mail correspondence from constituents that one
   newspaper group says should be fully open for review.
   
   Legal experts say they have news for the councilors: Courts around the
   country are siding with the public's right to know.
   
   During the Bush Administration, the U.S. Supreme Court ruled e-mails
   in the White House system were government documents. Since then, the
   courts have pretty consistently considered e-mail documents as public
   records, Harvard Professor Lawrence Lessig, who specializes in
   Internet law, said Thursday.
   
   But as Internet use has exploded, e-spats have erupted about e-mails
   throughout the commonwealth and the country.
   
   In 1995, the Norfolk County District Attorney ordered three members of
   the Foxboro School Committee to make paper copies of e-mails they sent
   before a controversial vote.
   
   In November, a complaint was lodged against the town of Ashland
   because selectmen wrote e-mails about a controversial apartment
   complex.
   
   Winchester school board members won't exchange e-mails on anything but
   mundane topics ever since a resident filed a complaint against them.
   
   In Texas, Gov. George W. Bush won't e-mail for fear incoming e-mail
   might become the subject of an open records request.
   
   City Councilor Stephen Murphy sides with Bush.
   
   He has defied a state order to hand over e-mail correspondence from
   his constituents to Linda Rosencrance, a reporter for the weekly
   Boston TAB.
   
   Rosencrance had asked eight months ago for the councilors' e-mails
   about a controversial real estate development along South Boston's
   industrial waterfront.
   
   Murphy, along with six of 13 councilors, refused, even after the
   state's supervisor of public records told them to hand the e-mails
   over.
   
   ``This isn't about me, this isn't about the Boston TAB, it's about
   private citizens and their ability to access public information,''
   said Rosencrance, who said she can barely remember what the e-mails
   she did get were about.
   
   City Councilor Thomas Keane, who handed over to Rosencrance his e-mail
   correspondence, agrees.
   
   ``The real problem of what's going on is you have a bunch of
   politicians who would like to keep secret what they're doing rather
   than expose them to the light of day,'' Keane said. ``It's a terrible
   thing. It creates suspicion where there shouldn't be.''
   
   But Murphy believes a requirement to turn over his private
   correspondence with constituents - electronic and otherwise - would
   chill his constituents' constitutional right to free speech.
   
   ``I still have a right to close my door and have a meeting in my
   office and keep Linda Rosencrance in the hallway,'' Murphy said.
   
   His constituents agree with him, he said.
   
   Lessig believes people have different expectations about what happens
   to a document than they do a phone call. And, he said, ``It's just as
   abusive to record telephone calls and to turn them over as it is to
   turn over e-mails.''
   
   Today, the secretary of state was to ask the attorney general to
   enforce the order to turn over the e-mails.
   
   ``They don't have a problem with our office,'' said Jack McCarthy,
   spokesman for the secretary of state's office. ``They have a problem
   with the law.''

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