Judge to public officials – you have no private life and no expectation of privacy

Susan Sally Mann is back in the news again as General District Court Judge Dean Worcester has ruled that public officials have no communications that can be considered private, even if they originate from a personally owned device located within their home using access paid for by the official personally.

Modern technology, Worcester wrote, has given Waters a “virtual office” that follows her everywhere, 24/7.

His ruling may infringe on the privacy of a public figure, Worcester wrote, and “that is simply a consequence of being a public official.”

The General Assembly may want to create an exemption for personal or private communications, or to clarify the definition of “transacting public business,” Worcester concluded, but it hasn’t done so yet.

I’m curious if the Judge is simply ruling in this fashion to spotlight for the General Assembly something he considers to be a gaping hole in the law and is suggesting they fix it. I’m no fan of activist judges, as anyone who reads this blog will know, but I find it hard to credit the idea that any reasonable person would view election to public office as a surrender of any privacy in communication.

In fact, the more I think about this ruling, the more it sounds like this was the activist position. If his comments are being reported accurately, here, then the judge is saying that the privacy expectations of our public officials changed when the technology changed. In other words, their private communications were respected as private when they were sending traditional paper mail but now that e-mail is the primary mode of communications, they have lost that expectation. I fail to understand how the introduction of a new technology should suddenly revoke a previously protected right without the General Assembly’s actions. My assertion is that the judge has stood this issue on its head. The GA should not have to re-write the law to re-protect a person’s privacy, the judge should have required them to re-write the law to allow an FOIA request to demand those communications previously respected as private.

Think about the ramifications of this interpretation of the FOIA. A law enforcement officer needs a warrant to gain access to a person’s private e-mail. That warrant must include some sort of probable cause. In other words, the police need to have a reasonable suspicion that something in that e-mail pertains to a criminal investigation. Without that, no judge is going to permit the police to simply grab all of a person’s e-mail and go wandering through it on a fishing expedition. Not so with the FOIA, under this judge’s ruling. A private citizen need not even explain why they want the documents and they are under no obligation to keep the documents they gain in confidence. This ruling places the capability of a common joe to extract a person’s personal communications far, far in excess of what we would allow our law enforcement officials – and that common joe can post the whole thing on the internet where the police can’t. (At least not without getting into trouble.) Add to that the issue that the police can’t execute such a warrant on purely political reasons. They are required to be in the process of investigating a crime of some sort. This application of the FOIA is a political tool, nothing more.

The FOIA was conceived to prevent public officials from closing the doors of government to the people. Councils that ran meetings in closed session and then wouldn’t post the minutes of the meeting, agencies that deliberate on new ordinances but won’t reveal who or what gave input to those new regulations, and officials that take actions in the pursuit of their office based on information they claim to have and yet won’t share were the targets of the FOIA when it was proposed. This political fishing trip has nothing to do with the governance of Loudoun County and everything to do with partisan politics – and it’s even internal partisanship within a single party, to boot!

All of that said, I think the judge’s suggestion that the GA address this issue is a good one and it’s something we should bring up to our reps. They need to clarify the issue so judges won’t continue to allow the latest technological development to re-write the law for us.

In the meantime, it would not surprise me in the least for our county government to now “go dark” in terms of electronic communications. In the face of this ruling, it’s the prudent thing to do.

(Updated to correct Sally Mann’s name. Apologies for that fumble, folks.)