Newark council members cry foul over FOIA access to emails

Under the policy, proposed by City Secretary and FOIA coordinator Renee Bensley, each council member and the mayor would be provided with a city-maintained email address – firstname.lastname@newark.de.us – to use for all city business. Currently, council members use private email providers such as Gmail or AOL.

If a city business-related email is received on a private account, the council member would be required to forward it to his or her government account. All emails would be retained based on state record retention guidelines.

Bensley said the proposal would simply standardize the retention of emails and make it easier to facilitate FOIA requests. She noted that most council member emails are already considered public records.

“The definition of a public record is not going to change based on whether the email goes to a personal account or a city account,” she said. “If it’s a public record, it’s a public record. The purpose behind this proposal was to help separate the public records from the personal records.”

AG recently ruled that council emails are public records

Bensley’s proposal comes amid changing guidance from the state attorney general’s office over whether council members’ emails are considered public records.

In 2010, the city denied resident Amy Roe’s request for then-mayor Vance A. Funk III’s private account emails regarding an appointment to the Newark Housing Authority. Roe appealed the decision to the attorney general’s office, which ruled the city has no right or recourse to compel elected officials to produce emails from their private computers.

However, in response to an unrelated appeal by the radio station WDEL last fall, the attorney general’s office changed its thinking, citing recent guidance from a federal appeals court. The office ruled that New Castle County Council President Karen Hartley-Nagle had to turn over emails from a private account to WDEL.

Bensley said that even prior to the 2017 ruling, she forwarded FOIA requests to council members and asked them to comply, but she could not force them to.

Though the emails are now considered public records, having emails in a private account means the public is relying on the council member to comply with FOIA without any means of guaranteeing he or she is not withholding emails.

"I've had residents say to me, ‘How can you tell me this is everything? Can you guarantee me there isn't anything else out there?’ And I can't because I don't have access to council member emails,” Bensley told council members Monday. “I trust that you all would give me the emails that are requested, but if I'm asked to swear to it, I can't."

Under the new policy, FOIA requests would first be forwarded to council members to fulfill. If a council member is unable or unwilling to search his or her email account for relevant records, the city’s information technology staff would do so, Bensley said.

In addition, if the requester believed a council member was withholding emails, he or she could ask for an IT staffer to double-check the account.

Bensley noted that state law exempts from FOIA certain types of documents, such as those relating to police investigations and personnel matters. Any council emails that fall under an exemption would be redacted or withheld.

Council members voice privacy concerns

On Monday, several members of council took issue not just with Bensley’s proposal but with the very notion that their emails are considered public records.

Markham said he worries that if a constituent emails him, that email and any sensitive information contained in it could become public.

“I think it’s an excellent way to reduce people's involvement in the city when they find out their emails will end up in the public domain,” Markham said.

He added that people could use FOIA requests to “farm” large quantities of email addresses – presumably to use for solicitations or other nefarious reasons – and that FOIA requests could be used for political reasons.

“I could find out who the mayor’s supporters are and who’s telling you how they want you to vote on things,” Markham said.

He noted that the state general assembly wrote the FOIA law to specifically exempt state legislator’s emails from the public record but did not extend that exemption to members of other government bodies.

Councilman Jerry Clifton also voiced privacy concerns, explaining that if a resident emailed him to complain about a house where criminal activity is occurring, the resident’s identity could be revealed through FOIA. Bensley responded that such an email would likely be considered an investigatory file and therefore exempt.

Clifton also expressed concern that using a city-run account would mean city employees could read his emails.

"I mean this with all respect for our employees, but once it goes into cyber-land, it's accessible by employees that you may not want to see certain correspondence,” he said.

Councilman Chris Hamilton said the proposal amounts to a “mass exposure of our residents.”

“I’m OK with exposing my stuff, but it’s a challenge to me that all my constituents who confide in me, all their emails would be forwarded,” Hamilton said. “I think that does send a chilling effect.”

Councilwoman Jen Wallace said she shares some of her colleagues’ concerns but added that the city needs to strike a balance between protecting privacy and ensuring transparency.

“We’re relying on individual council members to comply,” clarifying that she’s not insinuating any of her colleagues would deliberately withhold emails. “But there is an opportunity to hide things from the public that they should know.”

Councilman Luke Chapman – who is not seeking another term and only has six weeks left in office – was in support of Bensley’s proposal.

“I have zero concerns at all,” Chapman said. “I think it’s a great idea.”

Bensley said she will take the feedback into consideration and bring the issue back to council for discussion at a later date.

Meanwhile, council members’ emails are still generally considered public records subject to FOIA and will remain so unless the general assembly amends the law or the attorney general’s office changes its guidance.

For more information on Newark’s FOIA procedures or to file a records request, visit www.newarkde.gov/909/Record-Requests.