Are emails or digital communications of public employees subject to FOIL if used for official business?

Are emails or digital communications of public employees subject to FOIL if used for official business?

• A. Only if the employee consents
• B. Only if stored on private devices
• C. No, never
• D. Generally yes if they are created or kept by an agency in the course of official duties and in the agency's records.

Answer: (D)

FOIL covers agency records, no matter what format they’re in. If a public employee uses email or other digital communications for official business and the agency creates, preserves, or maintains those messages in its files, they’re part of the agency’s records and are subject to disclosure, with any exemptions that may apply. The determining factor isn’t consent or the device used; it’s that the agency created or kept the communication as part of its official duties and kept it in its records. If the communication exists only on a private, non-agency system with no agency copy or record, FOIL may not apply. But in the common official-business scenario, the emails are generally FOIL-accessible.

FOIL covers agency records, no matter what format they’re in. If a public employee uses email or other digital communications for official business and the agency creates, preserves, or maintains those messages in its files, they’re part of the agency’s records and are subject to disclosure, with any exemptions that may apply. The determining factor isn’t consent or the device used; it’s that the agency created or kept the communication as part of its official duties and kept it in its records. If the communication exists only on a private, non-agency system with no agency copy or record, FOIL may not apply. But in the common official-business scenario, the emails are generally FOIL-accessible.