Emails Showing Employee Misconduct Are Not Public Records

The Commonwealth Court has held emails documenting agency employees receipt and delivery of pornography on public computers are not public records. Pennsylvania Office of the Attorney General v. the Philadelphia Inquirer, ____ A.3d _____, No. 2096 C.D. 2014 (Pa.Cmwlth., Nov. 19, 2015).

The court reasoned “… emails should not be considered ‘records’ just because they are sent or received using an agency email address or by virtue of their location on an agency-owned computer, even where, as here, the agency has a policy limiting use of computers to official business and stating that users have no expectation of privacy.”

The court’s decision does not prevent Attorney General Kane from releasing the pornographic emails that she discovered during her review of the Sandusky prosecution, but the court cautioned that Section 708 (b)(17)(6) of the RKTL prohibits the disclosure of records that “constitute an unwarranted invasion of privacy.”

The decision is troubling to open records advocates because it prevents the public from discovering how public officials and employees are using their government funded email accounts, and it allows public officials and employees to potentially hide misconduct, even criminal misconduct, from public view.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.

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