This week’s blog is ‘ripped from the headlines’ (well, last week’s headlines, anyway). Most of you must have heard about recent FOIA requests from conservative/libertarian organizations to the University of Wisconsin, and, more recently, Wayne State. The requests were for email messages sent and/or received by faculty members at this university.
The Mackinac Center explained that
we thought a FOIA investigating professors’ emails on these subjects might demonstrate whether state officials should ask questions about this use of tax dollars for public universities. In the worst-case scenario, we knew these emails might suggest that the faculty had acted illegally, because certain political uses of university resources are prohibited by Michigan law. http://www.mackinac.org/14863
Whatever one might feel about the motivations of the Mackinac Center, you may have been surprised to learn that your email is subject to FOIA requests. But, in fact, according to Michigan law, if you work at Wayne State, you are:
A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of the state government
Freedom Of Information Act, Act 442 of 1976, Section 2(d)(i)
Your email messages are a ‘public record’:
“Public record” means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Section 2(e)
a person has a right to inspect, copy, or receive copies of the requested public record of the public body. Section 3(1)
Now, those of us who have been using email for a long time (I have some email records saved in files going back to the late nineteen eighties) have long said that emails are not private. In fact, there used to be a an aphorism that you shouldn’t put anything in an email you didn’t want to see on the front page of the New York Times. Or that you wouldn’t put on a postcard. The recent events simply illustrate this fact. Email is not secure, and it’s not private. If you want to communicate with someone privately, don’t use email.The technology is not secure, and, if you work for Wayne State, and use a Wayne State email account, you are not legally entitled to keep the messages private. (I should add that there are, in the FOIA law, exemptions for things that actually are private, such as personal communications, communications with your doctor and so on.)
Interestingly, in the case that started this debate, at the University of Wisconsin, the General Counsel of UW argued that political discussion with peers by faculty constituted privileged communications:
For an insightful discussion of all the issues, you can read my friend Tracy Mitrano’s blog on Inside Higher Ed:
Because it is quite irrelevant, I have not commented on any of the political issues touched on in this blog (for obvious reasons), but the facts are quite clear–your email belongs to the world.