SYRACUSE, N.Y. (NCC News) — When the Freedom of Information Act (FOIA) became law more than 80 years ago, it created the foundations for government transparency in the name of trust and public interest.
While the media submit the most FOIA requests, the open-government law is applicable to anyone. But sometimes, receiving the information requested proves to be harder than it seems.
After submitting over two dozen FOIAs to various departments of the Onondaga County government, only seven provided records and answered the requests as of May 15. One information request in particular was difficult to get fulfilled: asking for sent emails from 14 Onondaga County legislators who use private email accounts from March 17 to March 24.
When Onondaga County began providing government-issued emails a few years ago, a handful of lawmakers adopted the new protocol — but some, to this day, still do not.
Out of the 17 lawmakers, only three list their “ongov.net” email addresses, while the rest use a variety of personal emails.
“I’m a protocol kind of person,” said legislative minority leader Linda Ervin, who uses a government-issued email account. “I think protocol is important, but everyone’s not like me.”
While many people use Gmail, Yahoo, AOL, Hotmail, amongst others, the use of such servers is not technically protocol. Public officials across the U.S. have faced backlash for participating in the same practices — the most notable of which was Hillary Clinton’s email scandal during the 2016 election — but even on a local level, it’s not general practice.
In Central New York, Cayuga, Cortland, Oneida, Oswego and Tompkins counties’ legislators all use public emails, unlike Onondaga County.
In 2014, Wisconsin state lawmakers faced a lawsuit raised by watchdog groups over the use of their personal emails to conduct government business. Similarly, in 2015, NPR reported a number of Alabama lawmakers were also using their personal emails instead of government-issued addresses.
“It is problematic in that conducting public business through a private email, you just have to be making sure you’re retaining these records,” said Paul Wolf, the president of the New York Coalition for Open Government.
Some local governments have an email retention policy, but some don’t, Wolf said, but there is an expectation that those records are archived somehow if they are on private servers. While there is no local law in place that forbids lawmakers from using their personal accounts, they do have the option to be administered an “ongov.net” official email address for public business. But some lawmakers claim they were never given the option.
“Quite frankly, I was never offered a government-issued email address,” lawmaker Julie Abbott-Kenan said in an email. Her statement echoed the sentiments of legislators Brian May and Cody Kelly, who also claimed they were not aware there was an option to have a government email account.
According to Ervin, those who were offered the option of a government email and chose their private account may think it’s more efficient, but those accounts are more vulnerable.
“The chairman has a problem with his email address every now and then,” Ervin said. “He gets hacked and sends out a notice that we can’t send him anything, but he doesn’t use the ‘ongov’ (account), he uses his personal account.”
Chairman David Knapp lists both his personal and government email accounts on the legislature’s website, but did not respond for comment.
While privacy and security are amongst the major concerns surrounding personal account usage, private emails are also not technically subject to Freedom of Information Laws (FOIL), making the specifics of the law murky. Because private emails are, in fact, private, and not under the umbrella of the government, it may seem like the information is not public record—but it is, or at least it is expected to be.
“If you’re going to conduct public business through a private email, I don’t know if people understand or realize it’s still subject to FOIL,” Wolf said.
But Nancy Moran, the clerk for the legislature, said in an email that there are no archives of emails from county lawmakers, and that access to those emails are “not required.” Senior Deputy County Attorney Yvette Velasco also said that, because lawmakers use their listed emails “to conduct personal, as well as, legislative functions,” there was some protected content that could not be released under FOIL.
The FOIL request for the legislators’ sent emails was never fulfilled and the “case is closed.”
While the reason for denying such a request might not be nefarious, there’s a possibility that the department is “underfunded, understaffed and overwhelmed with public records requests,” said David Bodney, an attorney based in Arizona. “They don’t view them as a priority or duty.”
But a week’s worth of only sent emails — five business days — isn’t a huge ask, he said.
The county also called the request for emails “too vague,” but Bodney had a simple answer: the public deserves to know what the government is doing.
“Why do I want it? Because I want to know what you’re up to,” he said. “How do you spend your time? What are we paying for to have you serve as our legislator?”
