E-mail ruling raises open-records issues

Under Washington's open-records laws, e-mails written on public computers are public records.

But the Seattle teachers union argued successfully this month that e-mails about a grievance that their members sent via work computers were not public, because they weren't about Seattle Public Schools business.

"They pertain solely to union business, not anything to do with the operation of the school district itself," said Rich Wood, a spokesman for the union.

The Jan. 18 ruling by King County Superior Court Judge Julie Spector technically affects only 13 e-mail exchanges among a teacher and the Seattle Education Association's (SEA) president and executive director, but open-records advocates worry it will give public agencies an excuse not to release records that should be public.

"I think the order is just wrong," said Michele Earl-Hubbard, an attorney who specializes in open-records law. "They're using work computers; they're discussing things on public computers, presumably on public time. I can't see why they would be exempt."

Earl-Hubbard said the fact that the e-mails were written on district computers made them public. Not only that, but the district saved them — making it apparent they were the public's business, she said. But the union argued that e-mails must pass a "three-pronged" legal test: be written, be in possession of the district and have to do with district business.

Seattle Public Schools spokesman David Tucker said the district was prepared to release the e-mails but that SEA intervened. Although Seattle Public Schools was the defendant, a school-district attorney didn't argue against the union's stance in the hearing.

"We didn't have an active position on this," Tucker said.

The parent who requested the e-mails in the first place wasn't involved in the court action. In October, Jennifer Aspelund had requested access to e-mails involving a Sanislo Elementary School teacher.

People can't always afford to go to court to fight for open records, so the school district should have argued in support of its usual policy — to release e-mails written on public computers, said Micheal Reitz, general counsel for the Evergreen Freedom Foundation.

"It's just appalling that the school district would show up and indicate that it has no interest other than settling the case as quickly as possible," he said.

Rulings in a superior court don't set a legal precedent, but Earl-Hubbard said this case creates a model for what she called "cooperative lawsuits" — cases in which the parties agree.

Reitz agreed. "What was the judge going to do?" he said. "It was kind of an obvious ruling as far as settling the differences between the parties."

As for the school district, Tucker said, it won't change its policy about releasing e-mails. Wood said SEA is encouraging its members to use personal e-mail accounts for union business instead of their work accounts.

Emily Heffter: 206-464-8246 or eheffter@seattletimes.com