Are e-mail messages and listserv announcements created in the workplace subject to public disclosure requests and available to the public?
Yes. Although e-mail and listserv messages are intended to reach only the designated recipients, these messages should be written with the understanding that outside viewing is always a possibility.
Even though the judiciary is not covered by the Public Records Act, workplace e-mails by members of the judicial branch are potentially subject to public disclosure under common law standards.
Accessibility of Listserv and Other E-Mail Messages - Think Before You Write
by AOC Legal Services
Distributed at the Presiding Judges Conference in December 2007
E-mail messages are intended to be viewed by the recipients only, and messages distributed via AOC's listservs are intended to be viewed by listserv members only. Nevertheless, these electronic messages can sometimes be read by outsiders. The potential for outside viewing is significant enough to merit caution when writing these messages.
There are many ways in which e-mail messages can end up being viewed by outsiders. Because the risk of outside viewing is increased for messages sent via multi-member listservs, the following analysis refers primarily to listserv messages, but the analysis applies equally to individual e-mail messages.
- Messages being forwarded, even inadvertently, to outsiders. A listserv member can easily forward the message (or even a chain of messages) to another person, at which point it can be broadly re-distributed with ease. Sometimes the original forwarding is done inadvertently, such as if a listserv message is embedded in a chain of earlier e-mails, or if the member forgets the message was received through the listserv, or if the listserv member hits the "send" button on the wrong message. Also, keep in mind that some judicial listservs include members who serve part-time within the judiciary but part-time outside of it - for example, the DMCJA listserv includes some part-time judicial officers who are also prosecuting or defense attorneys.
- Access by others through the workplace. At each workplace for each person on the listserv, there are IT personnel who have the capability of monitoring e-mail messages passing through the workplace's network. Usually, monitoring of e-mail by IT personnel focuses on system-protection issues, such as e-mails with viruses, worms, and spam. Employers, however, have broad authority to monitor workplace e-mails to ensure proper e-mail use, and the technology is usually there for this to be carried out as needed. Also, anybody else at work who knows the member's e-mail password potentially has access to the member's messages. Many e-mail systems allow for remote web access, thus an outside person who knows a member's e-mail password and user ID has easy access to the person's work e-mails. If a member receives listserv messages at home, rather than at work, then family members or others who have access to that member's home e-mail password would also have access. If even a single member's incoming e-mail is viewed in one of these ways, then the viewer can see the comments made by anyone else on the listserv.
- Access via outside Internet providers. After an e-mail message leaves the workplace, it is routed through one or more outside Internet Service Providers (ISPs) or routers, where again the e-mail traffic is susceptible to being monitored by outsiders, whether at the time of the transmission or afterwards. The person sending the message, the person receiving the message, and their respective places of employment have no control over the message at this point in the process. It is usually through outside ISPs that law enforcement agencies can gain access to Internet messages as part of criminal investigations. [NOTE: A recent 6th Circuit case held under the Fourth Amendment that e-mail users can have a reasonable expectation of privacy in their Internet messages, such that the government needs probable cause and a warrant before seizing e-mails from ISPs. See Warshak v. US, 490 F.3d 455 (6th Cir. 2007). This is an area of the law that is just beginning to develop.]
- Public disclosure requests under the common law. Even though the judiciary is not covered by the Public Records Act, workplace e-mails by members of the judicial branch are potentially subject to public disclosure under common law standards. In Beuhler v. Small, 115 Wn.App. 914, 64 P.3d 78 (2003), the court held that correspondence sent by a superior court can be subject to public disclosure, under the common law, depending on a fact-specific balancing of the interest in open government and the interest in confidentiality. Accordingly, a public disclosure request involving any one member of the listserv could potentially result in the viewing of messages that were sent by other listserv members. (Adding to each e-mail a generic disclaimer that the message is confidential is probably a good idea, as these disclaimers can establish the sender's desire for privacy and can lessen the chance that a recipient will re-transmit the message, but these disclaimers are not dispositive as to whether the message is a public document.) A disclaimer can establish that the sender wants the message to be legally protected, but it does not determine whether it will be protected.
- Discovery in civil litigation. Workplace e-mails, with some exceptions, are subject to discovery in civil litigation. E-mail messages are "compilations of data" for purposes of CR 34 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) and thus are within the scope of the types of "documents" that can be obtained through discovery. Accordingly, e-mails are discoverable if they are relevant to an issue in the case, if they are not privileged (e.g., attorney-client privilege), and if they are not protected as trial-preparation work product. See CR 26(b). Disclosure of the e-mails would be required even if the e-mails themselves would be inadmissible at trial, as long as the information "appears to be reasonably calculated" to lead to admissible evidence. CR 26(b)(1). Accordingly, civil litigation involving any one of the members of a listserv could potentially result in the viewing of messages that were sent by other listserv members.
- CJC investigations. The Commission on Judicial Conduct is authorized to investigate allegations of misconduct by judicial officers. Included in this investigative authority is the power to issue subpoenas compelling the production of "documents, records, and other evidence for the determination of any issue before the commission." CJCRP 14(b). This authority seems broad enough to include not only written documents but relevant e-mail correspondence.
Remember - E-mail messages have a long shelf-life. Copies of e-mail messages sent via a listserv are kept on the sender's computer (or server) and on each recipient's computer (or server). Even if a recipient hits the "delete" button, the message is not actually erased, but remains on the computer subject to being overwritten by later data. Once sent, the e-mail message can live on, somewhere (and perhaps in many places), for a very long time.
 Nast v. Michels, 107 Wn.2d 300, 730 P.2d 54 (1986); Spokane & Eastern Lawyer v. Tompkins, 136 Wn.App. 616; 150 P.3d 158 (2007) (superior courts are not covered by the Public Disclosure Act, thus the Act does not require disclosure of the court's correspondence with outside entities); Beuhler v. Small, 115 Wn.App. 914, 64 P.3d 78 (2003) (neither the Public Disclosure Act nor the common law requires disclosure of a superior court judge's cumulative notes summarizing that judge's prior sentencing decisions); see also Smith v. Okanogan County, 100 Wn.App. 7, 15 n.4, 994 P.2d 857 (2000) (dictum as to a judge's oath of office constituting a public record).
 See generally Note, "Don't Read This if It's Not for You": The Legal Inadequacies of Modern Approaches to E-mail, Privacy, 91 Minn. L. Rev. 241 (2006).
Caveat. This legal analysis is intended to assist the Administrative Office of the Courts (AOC) in making policy decisions. The legal analysis is not intended to be relied upon by those outside of the AOC. Further, it is not intended as, nor should it be construed as, a legal opinion in the nature of an Attorney General's Opinion. The official legal advisor for individual courts is the county prosecutor or city attorney, not the Administrative Office of the Courts.
RN id: 2014