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Times, Clearwater clash in court over access to city's e-mail

By DEBORAH O'NEIL

© St. Petersburg Times, published March 2, 2001


ST. PETERSBURG -- Lawyers for the St. Petersburg Times and the city of Clearwater debated in court Thursday just how sweeping the public's right to know is when it comes to e-mail.

The Times contends all e-mail sent or received on government computers is a public record. The newspaper is challenging Clearwater's practice of allowing employees to withhold from public review e-mails regarded as personal.

The city argues it should have to make public only those e-mails that are a part of official government business.

In October, the Times requested e-mails of two Clearwater city administrators, but the city refused to turn over certain e-mails considered personal. In the e-mails that were released were racy jokes and correspondence about a private business in which the two had invested.

After the Times reported the administrators had exchanged those e-mails while at work, one was asked to resign, the other was reprimanded.

In December, the Times sued the city, seeking a court order requiring all e-mail be made public when requested. The suit also sought access to the archived e-mails of the two administrators.

At issue in Thursday's hearing before Pinellas-Pasco Circuit Judge Anthony Rondolino was what constitutes a public record.

The Times argued the city's own policy states that e-mail on city computers is the property of the city and employees should have no expectation of privacy. For those reasons alone, all e-mails are public, said Times attorney Penelope Bryan.

Florida's public records law does not allow public employees to withhold a record because they decide it is personal, she said. "We do not have anything, anything that defines what is personal or not, nor do we have a statutory exemption," Bryan said.

But the city argued personal e-mails are not public record because they are not created in the transaction of city business.

"They don't even meet the threshold definition of a public record," said Assistant City Attorney Leslie Dougall-Sides. Rondolino posed a series of hypotheticals.

"It's absurd to me that a Christmas card from my fraternity brother or friend that comes to me here, and I read it here, that becomes a public record?" he asked.

"The Times, the newspaper, is delivered to City Hall," Rondolino continued. "It's a public record now? If you bring your bills to the office and during your lunch break you send out your bills, that's a public record?"

However, Rondolino said, an argument can be made that those are not the same as the e-mail on the city computers.

"The distinction that is able to be made is the Christmas card, the letter, the newspaper . . . those are not claimed to be owned by the city, yet it appears the city is claiming ownership of the electronic impulses in its computer files," Rondolino said.

Rondolino did not make a decision but gave the lawyers 15 days to submit any final memorandums.

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