Dan Wallach at Freedom to Tinker has an interesting concern over a case that would otherwise seem easy to evade by using any number of free email services to simply compartmentalize correspondence an employee of a public institution does not wish to have subject to a Freedom of Information Act request. The circumstances he considers are very particular when asking questions about FOIA’s reach, or even that of an employers. Specifically, Wallach wonders if the practice of using Gmail or a comparable service to transparently handle professional email would blur the lines enough to erode any implicit protections from using an outside service.
Here’s another thing to ponder: When I send email from Gmail, it happily forges my rice.edu address in the from line. This allows me to use Gmail without most of the people who correspond with me ever knowing or caring that I’m using Gmail. By blurring the lines between my rice.edu and gmail.com email, am I also blurring the boundary of legal requests to discover my email? Since Rice is a private university, there are presumably no FOIA issues for me, but would it be any different for Prof. Cronon? Could or should present or future FOIA laws compel you to produce content from your “private” email service when you conflate it with your “professional” email address?
Bear in mind that norms have an impact of the law so what he is asking isn’t so far fetched. The potential fuzziness would suggest a better tactic would be to keep a much more explicit division, along with the overhead, that requires. Wallach ponders that practice, asking a final question as to whether that would be enough for purposes of insulating a personal account from such searches.
The case of Prof. Cronon and the FOIA requests for his private emails, Freedom to Tinker