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Tuesday, October 18, 2005

Ind. Gov't. - Does public access depend on how the requestor will use the information? Who decides what is a "good" reason? [Updated]

Kokomo mayor Matt McKillip has released this press release, dated 9/30/05, styled "Mayor McKillip Defending Privacy Rights - Denies Requests to Disclose Email Addresses". It reads in full:

Recently, a local youthful political operative has been using Indiana's public records access laws to try to force the City and the Mayor to turn over private email addresses that the City and the Mayor have on file to send newsletters. The City has denied the request based on the law, because Mayor McKillip believes all subscribers have a right to privacy and that email addresses are private. Just as a person should expect to not get harassing sales phone calls and to that extent has been protected by the State's No-Call List, the City Administration believes when an individual provides the Mayor with his/her email address, he/she did not want his/her email address to be shared. Mayor McKillip understands the concerns of the public in that they don't want unsolicited emails (SPAM), don't want to be exposed to computer viruses, and don't want to have email addresses sold to email marketing firms. Releasing email addresses to the public would likely cause any or all of this to occur.

Therefore, the City has followed a long standing State law [I.C. 5-14-3-3(f)] that restricts public distribution of addresses that a City collects and holds citing that email addresses, although new since the address law was put on the books, still qualify as an address. Thus, the City is prohibited from sharing copies of email addresses with the media or others who ask for copies.

Our legal counsel has advised us that we must allow the list of email addresses to be viewed and inspected. However, the City will not distribute paper or electronic copies of email addresses. The individual asking for the list made his intention of sending out unsolicited mail very clear when he posted a message to the Howard County democrat party web site that said, "But this really isn't about me; it's about the (democrat) party... Our (democrat) e-mail newsletters should be going out to these people (those who get the Mayor's emails) as well."

The Mayor vows to keep up the fight for a subscribers right to privacy and will do all he can to not disclose email addresses to any individual or news organization that requests a copy of email addresses. The Mayor has also asked the State legislature to update the access laws on addresses to include more restrictive disclosure on email addresses. Senator Drozda is going to sponsor such privacy protection legislation for the City and for our residents that would protect your email like the No-Call List protects your phone number.

In defending email privacy, the Mayor said, "This is an important privacy issue, not unlike the No-Call List, that has been brought to the forefront by ever advancing technology." The Mayor continued, "Any savvy 14 year old with access to our emails could do irreparable harm to our subscribers and the City by selling our list, spamming our list, mailing viruses to our list or sending fake and harmful messages that appear to be coming from me or the City."

The mayor does not indicate whether he has checked his action with the Public Access Counselor. What if the "local youthful political operative" wants to photograph the list of e-mail addresses that the "that the City and the Mayor have on file to send newsletters." Here is the statute the mayor cites: IC 5-14-3-3.5.

[More] Apparently the above release from the Kokomo mayor was emailed to everyone on the mayor's email list -- the list that is the subject of the dispute. Access it here.

[Updated 10/19/05] TDW asks today, and I'm asking myself the same thing, "Don't know how we missed this story!" The Indianapolis Star ran this story Monday, 10/17/05! It is by John Strauss and headlined "Teen filmmaker points lens at Kokomo politics." Don't miss it!

And the young man DID go to the Public Access Counselor. And DID get a formal opinion, favorable to him, dated Sept. 9th. This puts the mayor's letter this week in an entirely different light.

PAC Karen Davis' opinion is recommended reading. It concludes:

In my opinion, the legislature did not contemplate e-mail addresses as a type of address, which, with corresponding names, a public agency could refuse to copy for a person, and therefore, did not intend for such a list to not be copied. The plain, ordinary and usual sense of “address” does not include e-mail addresses. To put it another way, the terms “e-mail address” and “address” are not interchangeable. Applying the rule that limitations on the rights under APRA are to be strictly construed, I reach the conclusion that the list you seek is a disclosable public record which you are entitled to copy, not limited by IC 5-14-3-3(f).

My research reveals that this question has never confronted the public access counselor, and therefore I was unable to find any guidance in our previous opinions. I encourage public agencies to consult my office prior to denying a record when close questions of statutory construction of the APRA are presented; nevertheless, I do not believe that the City’s refusal to provide you a copy was done with intent to violate the APRA.

CONCLUSION. For the foregoing reasons, I find that the City of Kokomo should provide you with a copy of the list of names and e-mail addresses.

Posted by Marcia Oddi on October 18, 2005 12:33 PM
Posted to Indiana Government