Though the Montana Constitution states public records must be provided to anyone who asks for them, the state is giving our public servants an easy way out.
State policy does not require employees or elected leaders to use their government email accounts for government business, which means officials are allowed to create and store public documents where nobody can find them. Not even Montana’s official record-keepers can access these public records without permission, making it impossible for them to comply with open records requests even if they wanted to.
Gov. Steve Bullock’s chief legal counsel and former Secretary of State Linda McCulloch both said it is unclear whether state law requires the public disclosure of any emails stored in personal accounts. But as Montana Freedom of Information Hotline attorney Mike Meloy has pointed out, a public document is a public document regardless of the medium.
We have seen evidence of public officials intentionally using private email accounts to keep their conversations out of government databases. In one string of emails we obtained through a public records request, one high-ranking state official asked another for her personal email address, and the rest of their conversation is unknown.
Other public servants might not even realize they are concealing public documents in their private accounts. And some probably just don’t know how to sync their public accounts with their various digital devices, which public officials commonly use to communicate with each other and their constituents.
The growing prevalence of electronic communication has complicated the issue of public records retention, and there is no easy way to ensure that all of them are handled appropriately. Text messages and instant messages are additional examples of electronic public documents that our forefathers could not have prepared for.
However, that doesn’t mean this issue should be ignored. And requiring government officials to use their official government email accounts for official public business is an easy first step the state can take right now as part of an ongoing effort to get this problem under control.