THEO WELLING
Alderman Jeffrey Boyd.
But even so, Jones wasn't prepared for his reply to an email she sent last week — taking issue with the fact that she'd sent her response to his city-issued email address.
"Madam Treasurer. I use my personal email for most of my official business. I would appreciate it if you would respond to the email address originally sent," Boyd wrote. "If you prefer to send to my official government email that is OK as long as you include my personal email address originally sent. I check my personal email more often. Your attention to this matter is greatly appreciated. I am perplex [sic] as to why this is complicated for you. This is my second request."
Boyd insists there is nothing untoward about his preference for an sbcglobal.net email address over stlouis-mo.gov. He's hardly hiding it; he puts the personal address on his aldermanic business card, he notes. And he argues that his emails would remain accessible to the public via the state's Sunshine law, regardless of which account he's using.
The law seeks to ensure that public officials' communication be open to the public. If a reporter asks for emails written by a city official about city business, they're supposed to be able to obtain them. Boyd says that would be the case for his personal account.
"Do you remember Sarah Palin?" he asks. "Sarah Palin used her personal email for government business, and she had to give up every email that had to do with official business." He says he would do the same: "There's no reason for me to want to subvert the Sunshine law. I believe in the Sunshine law."
But by moving city business to a personal email account, Boyd may be doing just that, says David Roland, director of litigation for the Freedom Center of Missouri and a frequent thorn in the side of government bodies trying to conceal official records.
Legally, Boyd is not equivalent to an executive branch staffer like Palin, Roland explains. And that means emails from a personal account would not necessarily be public record.
"Although the St. Louis City Board of Aldermen is definitely a public governmental body subject to the Sunshine Law, the Missouri Court of Appeals has held that because individual members of legislative bodies cannot govern as individuals, those individual members do not themselves fall within the definition of 'public governmental body,'" Roland explains.
That's even though email messages from a city account are public.
"Messages sent to and from a public email account almost certainly WILL be considered to be documents retained by a public governmental body, even if the individual officials would not themselves be considered 'public governmental bodies,'" Roland explains. "That is why messages sent to or from an official's public email address would likely be considered to be public records, but messages sent to or from a private email account would not."
Beyond that, there are questions of retention, and production. As Boyd acknowledges, a journalist (or gadfly) seeking his personal emails wouldn't get carte blanche.
"You'd have to be specific," he says. While he accepts that some constituent emails might be fair game, he says many constituents are friends — and he wouldn't turn those emails over in response to a Sunshine request. "If we're planning a birthday party for my constituent's grandmother, I don't need you knowing what we're talking about. Now, every email I've ever sent to a city department, I'd give you those." But while some culling is normal in records being produced under the Sunshine law, the fact Boyd himself would be doing the culling as opposed to a city records custodian also raises complications.
City Counselor Julian Bush says he is not aware of ever being asked if it's OK for aldermen to use personal emails for city business. He's not sure what the answer would be.
But Boyd, for now, is insistent that his system is OK. "I dot my 'i's and cross my 't's," he says. "I'm a rules person. I'm a military man." Then he changes the subject to criticize the city treasurer's parking division management. "Why is she above the law?" he asks.
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