The ramifications of private email use by public officials regarding governmental matters is a phenomenon that is generating litigation throughout the country, with the possibility for the same here in Oregon. Aside from the familiar political issues of improper email usage made by political parties against each other, consumer and public interest groups assert violations of access to public records laws caused by private email archiving. Consequently, a national web of business litigation cases may be an emerging trend.
There is a need to allocate financial risk and to fix the disorganized and unformulated policies currently existing. For a municipality, public body or an elected official who may be feeling the pressure and heat of not having selected appropriate government channels for all email communications, associating with an experienced business litigation law firm may be an essential first step in meeting the big challenges ahead. The Restatement and other uniform law groups may be at the cutting edge of fulfilling the need for uniform rules to guide private and public actors.
One issue is the alleged violation of various state open government, or Sunshine Laws, that occurs when an official effectively conceals certain government actions by using private email servers. The need for public access to records overrules private convenience. In one locality in another state, a city government has invested in resources to defend its city manager from lawsuits for the use of private email servers to conduct city business. In that case, the appearance of insurance coverage for the city has cushioned the blow of any adverse determinations that may develop.
The widespread nature of the problem is likely just revealing itself, and it is therefore incumbent on state and local officials to get proactive and take action where laws and protocols are not in place. Although when seen through a political lens, it is easy to assume bad intent, the fact is that the delineation between personal and business emails has not always been all that clear for most government officials. A comprehensive educational and legislative approach is likely needed nationwide, including in Oregon, before the tide of potential business litigation can be defused.