Legal Aspects of Electronic Mail in Public Organizations

Abstract

The increasing use of electronic mail in the workplace has generated important legal questions, especially for public organizations. The legal questions concerning e-mail in public institutions and agencies fall into two basic categories: (a) issues of employee privacy regarding e-mail messages; and (b) public access to e-mail under applicable freedom of information legislation. While employees might believe that their e-mail messages are private, the employer has broad legal grounds for reading workplace e-mail. In particular, when the employer owns the e-mail system, which almost always is the case, the employer has considerable latitude to access and read stored e-mail messages, at least if there is some legitimate business reason for doing so. Government organizations also must treat at least some of their email as part of the public record, making it open to public access. State laws vary considerably in terms of how they define the types of e-mail messages that are part of the public record, some being far more inclusive than others. Given the uncertainty and confusion that frequently exists among employees regarding these legal questions, it is essential that public organizations develop and publicize an e-mail policy that both clarifies what privacy expectations employees should have regarding their e-mail and specifies what recording keeping requirements for email should be followed to appropriately retain public records. <BR>