Are a public official’s emails sent from his or her personal computer subject to disclosure under the Right-to-Know Law?
Following a 2011 decision of the Pennsylvania Commonwealth Court (In re Silberstein), it appeared that the answer was “no.” However, according to a more recent 2011 Commonwealth Court decision (Mollick v. Township of Worcester), the answer is not that simple.
The Silberstein case appeared to turn on whether or not the email was from a township official’s personal computer. If it was, the email was not subject to disclosure under the Right-to-Know Law. However, in the later Mollick case, the Court distinguished the situation in Silberstein by concluding that although a public official’s emails to members of the public are not a public record of the township subject to disclosure, emails between a quorum of supervisors (such as an email between two supervisors of a three-person board of supervisors) may constitute a “record,” subject to disclosure under the Right-to-Know Law.
The Mollick case goes through a more detailed analysis of the issue. The email in question must also meet the other requirements of the Right-to-Know Law for a “record” in that it must otherwise relate to a transaction or activity of the township and must not be exempt from disclosure under other provisions of the Right-to-Know Law. The municipality’s open records officer must conduct a good faith review of the municipality’s and individual officials’ email records to determine whether those emails constitute public records that must be disclosed.
One possible way to attempt to minimize intrusion into the individual computers of municipal officials is for the township to adopt a policy requiring its officials to use township email accounts for township business. However, use of such township email accounts does not immunize emails from personal computers of officials if they relate to business of the municipality.
On the subject of the use of a public body’s computers or email accounts, in a 2012 case (Easton Area School District v. Baxter) the Commonwealth Court pointed out that, even where a public body has adopted a policy requiring its officials to use township email accounts, emails sent and received by a public official on a government owned computer (or using an agency email address) are not automatically public records if they do not otherwise meet the Right-to-Know Law’s definition of public record.
— Stu Cohen