News

Show Me the E-Mail

County told to hand over records, fix the system

by

Curtis Massood went to Ada County last year with what he thought was a simple public-records request. What he got was a bill for more than $164,000.

"I figured it had to be a typo," Massood said. "They assured me it wasn't a typo."

Deciding that was a little much for the e-mails he had requested, Massood filed a civil lawsuit against the county and won, forcing county officials to re-examine how e-mail is archived.

District Judge Kathryn Sticklen ruled late last year that Ada County's e-mail storage system had, in effect, made public records inaccessible, and the astronomical fee was far out of the reach of the average citizen.

The county was ordered to return a portion of the money Massood had already paid, as well as produce the requested records. The county has filed a motion for reconsideration, arguing that Sticklen did not have the authority to order the county to come up with a new storage system.

The case shines a light on a relatively new Idaho law, classifying e-mails as public records. The state Supreme Court ruled in May 2007 that e-mail was subject to the same public-records laws as traditional correspondence.

Boise attorney Allen Derr, a board member of Idahoans for Open Government, said agencies should get used to such inquiries.

"In today's world, e-mail is an important form of communication," he said. "There shouldn't be an expectation of privacy if using public equipment."

According to the county, e-mails are archived to magnetic tape every two months. During the civil case, county IT workers estimated it would take 10 hours of work for each month of records before they could even begin a search. Sticklen ruled this not only violated public access, but wondered about its effect on county business.

Ada County never denied the right of Massood to see the records in question. Instead, officials argued that the request was too broad and would require substantial manpower to not only find the e-mails, but that a county attorney would have to review every one before it was released. The cost for doing this: $60 an hour.

The case had a surprising beginning: a coffee shop and a billboard on land just outside of the borders of Meridian.

Massood, owner of Canyon Outdoor Media, wanted to put up a billboard on land occupied by a small coffee shop. Through confusion over jurisdiction and the expense of being annexed by the city, the coffee shop was operating in violation of county code, and therefore Massood could not put up his billboard.

Massood hired lawyers to navigate the county's legal hurdles and, filed a request for copies of e-mail correspondence between Ada County Development Services employees and other public agencies relating to his particular situation.

The county then sent Massood a bill for $5,685.12—the cost, it claimed, of retrieving the records.

Massood said he was shocked at the request, adding that an earlier public records request had cost him only $73 for duplication costs and yielded "a foot-and-a-half tall stack of papers."

But he thought paying the fee would be cheaper than suing the county, so he wrote out a check.

Fast forward one month. Ada County notified Massood that it had spent $2,955.36 of his money and found 167,000 e-mails, but needed him to pony up another $164,700 for additional work.

Here's where Massood felt it would be cheaper to sue.

"It's not that the county ever denied [the request], but when they ask for the price of a house, [it] acts as a bar to the access of that information," said attorney Victor Villegas, who is representing Massood.

"$60 an hour—sign me up if that's what they want to pay," Villegas said.

He said the issue has never been the county's ability to charge a fee to cover the cost of copying large amounts of records, but the excessive amount of the fee.

"They seem to forget the other part of the law," he said. State law directs public agencies not to charge for records if the person requesting them cannot pay or the public interest would suffer by the collection of a fee.

In Villegas' view, few people could come up with more than $100,000 for records.

"I think what they have done here, is choose the most expensive route to get us our request," he said.

As part of the county's defense, officials said Massood's request made it appear that he was preparing to sue the county. The argument was quickly struck down by Sticklen, who pointed out that state law forbids the county from withholding public records because of the assumption of litigation.

"If it's part of the public record, they're entitled to see it," Villegas said. "It doesn't matter the reason."

While Ada County officials have continually said that Massood's search request was too vague, Sticklen disagreed. "The court fails to understand how the language in Massood's request is overly broad or vague," she wrote in the decision.

County officials maintain that the work required to fill the request is overwhelming.

"To fully understand the magnitude of this issue, you must first understand how voluminous the library is where the county's e-mail information is archived," the county's legal team wrote in a response to inquiries by BW. "Presently, Ada County employees send and receive approximately 2 million e-mail communications a day, of which, approximately 90,000 are stored daily on backup tapes.

"This tremendous volume of stored electronic data is the equivalent to a public library containing 6 million 500-page unindexed books," the statement read.

The county goes on to defend its computer system, which it said meets or exceeds industry standards when it comes to archiving electronic data.

County officials further argue that Massood refused to provide specific search terms, but Massood and Villegas said they did just that, and assumed that such search terms would have been what any reasonable person would have used.

The county points out that Massood did not provide specific search terms until the actual hearing. By using these suggested terms, the county managed to reduce the pool of 164,000 e-mails to 100, of which county officials said only one met all of Massood's search request.

The single e-mail message has since been sent to Villegas, as well as a check for the unused portion of Massood's original $5,685.12. Villegas has filed an opposition to the county's motion, and asked for the rest of Massood's money back.