Hamblett & Kerrigan : Private Email Wins a Round in the Battle!

Private Email Wins a Round in the Battle!

It is so funny how much our lives have changed in the last 10 years. Ten years ago I could not have imagined writing a blog about private email issues. Oh, that’s right, ten years ago there were no blogs! However, there are now blogs, emails and, in a continuation of olden days, there are still lawsuits. It turns out that there was a lawsuit filed in Alaska about former Governor Palin’s use of private emails.

Governor Palin had apparently used private email accounts on occasion to conduct state business. This fact gained some notoriety last fall when her Yahoo accounts were hacked while she was the Republican vice presidential candidate. The lawsuit was brought by Anchorage resident Andree McLeod, who contended that such use of private emails by the governor denied citizens the right to inspect public records. A state court judge ruled Wednesday that the Alaska governor's office can use private email accounts to conduct state business as former Governor Palin did. The judge’s ruling was essentially based upon Alaska state law. The judge said that there was no provision in Alaska state law that prohibits the use of private e-mail accounts when conducting state business.

The judge agreed with the Alaska Attorney General’s office that public records are defined by state law as those preserved for their informational value or to document a public agency's operation or organization, and that current open records law doesn't specifically deal with private emails.

Such issues are often the subject of litigation in the new “e-discovery” environment we live in. Procedures, law and protocol are things that need to be constantly reviewed and updated in both the public and private sectors. While there remain questions regarding the validity of having procedures such as those questioned in Alaska (due to hacking and the like), there are also the issues of compliance, especially once a suit has been brought against a private company or government agency. The issues of spoliation of evidence (the destruction, alteration or mutilation of documentation which may have evidentiary value to legal action) in our new electronic world can be time consuming and expensive but may be much more expensive if the rules and regulations governing such issues are unknown or ignored. If you have questions about your record keeping policies, regarding emails or more general record keeping, either before or after you or your company is threatened with or already entangled in litigation, please feel free to call our office to speak to one of our experienced lawyers. Meanwhile, we will continue to watch to see what action the Alaska legislature, as well as the New Hampshire legislature, takes to set proper public government policy on emails in the 21^st century.

Timothy G. Kerrigan is a director at Hamblett & Kerrigan, P.A. His present practice focuses on complex legal situations both in the litigation and in the ADR context. He is available as a litigator, client advocate or as an ADR neutral. Mr. Kerrigan is certified by the State Office of Mediation and Arbitration both as a mediator and as an arbitrator. You can reach Attorney Kerrigan by e-mail at tkerrigan@nashualaw.com.

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