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Raleigh councilman-elect abandons private email idea

City councilman-elect David Cox says he won’t use a private email account to address constituent concerns after he takes office after all.

His reversal comes two days after a News & Observer story in which legal experts criticized his move to create the account as detrimental to government transparency. He announced the decision Friday in a letter to The N&O.

“Although, as your article stated, use of such an email address is perfectly legal, the simplest and cleanest approach is to use the email address that the City will be providing to me,” he wrote.

Cox unseated longtime councilman John Odom in North Raleigh’s council district in part because he promised to pay closer attention to resident concerns. He’s known for leading a successful fight against a Publix grocery store planned for Falls of Neuse Road.

A computer scientist, Cox said he created the private account to protect constituents who want to relay sensitive information to him without revealing their identity.

But state law views all emails sent and received by elected officials about government business as public records – regardless of which email account is used.

Transparency advocates oppose the use of private accounts by public officials because state law doesn’t guarantee direct access to elected officials’ private email accounts like it does with government-created accounts. If someone requests emails in an official’s city-created account, a city employee can access the account and produce the records without that official knowing.

By contrast, if someone requests emails in an official’s private account, state law allows that official to judge which emails are public and which aren’t. So if an elected official doesn’t want to produce an email that qualifies as public, he or she can withhold it without the public knowing.

And there’s no immediate legal consequence for illegally withholding public emails. The public has no way of forcing an official to produce emails from a private account except through successful legal action.

Jonathan Jones, director of the N.C. Open Government Coalition, praised Cox for seeking to conduct all online communications through his city-issued account.

“It’s certainly the best and easiest way to ensure the public record is accessible and complete,” Jones said.

It’s not unusual for elected officials to occasionally use their private emails accounts for government business. Raleigh council members Mary-Ann Baldwin, Kay Crowder, John Odom and Wayne Maiorano said they do so – albeit rarely.

“I was pretty strict about communicating on work email,” Maiorano said, referring to his city account.

It is uncommon, however, for an elected official to direct constituents to his private email, as Cox did in a Facebook post.

Bob Phillips, executive director of Common Cause North Carolina, which advocates for transparent government, said he’s never heard of an elected official doing what Cox did.

Phillips and Jones said they were especially surprised by Cox’s Facebook post, given the attention the national media has paid to Democratic presidential candidate Hillary Clinton. A congressional committee recently questioned Clinton about her use of email on her private account during her tenure as U.S. Secretary of State.

Cox, for his part, said all along that he wished to obey all public records laws and govern transparently. In fact, he suggested government could operate more efficiently if, say, a constituent could complain about a neighbor without the constituent’s name potentially becoming public.

He offered one resident’s experience as an example of how public records laws can have “a chilling effect.” The resident anonymously reported suspected drug activity in her neighborhood but wasn’t satisfied with the city’s response, Cox said.

“She would have liked to have emailed her Councilor but didn’t do so for fear it would not be anonymous,” Cox wrote in his letter to The N&O.

“In other instances people had opinions about issues but simply didn’t want to express those opinions in public for fear of criticism,” he continued.

Jones, the transparency advocate, said Cox’s privacy concerns as a red herring.

“If a citizen wants to lodge a complaint with their councilor they can choose to do so anonymously,” he said. “That’s entirely possible.”

But the public won’t know if its government is operating efficiently unless it operates transparently, Jones said. He hopes all constituents use email to log complaints.

“That allows citizens to judge for themselves whether the complaint is warranted, whether it’s being dealt with appropriately, and how the councilor responds,” he said.

Paul A. Specht: 919-829-4870, @AndySpecht

David Cox’s letter to The N&O

Thank you for the article concerning the email address that I created for District B residents. It was very enlightening. After speaking further with others including a longtime friend who is a reporter in Pennsylvania, I have learned more. I found quite a lot of information on the NC Press Association’s website at http://www.ncpress.com/open-government-resources.

After reviewing this information I have decided that I will not continue to use the email address after I take office. As I indicated in my original Facebook post, my intent was to use the address subject to whatever laws are required of any member of City Council. Although, as your article stated, use of such an email address is perfectly legal, the simplest and cleanest approach is to use the email address that the City will be providing to me.

While I agree with open government and the need for transparency, I am concerned about the loss of citizens’ privacy and the "chilling effect" public records laws may have on some people. For example, if a citizen has a concern such as a neighbor who is letting a property become rundown, they cannot email an elected official without it becoming public record and therefore disclosing their identity. I expect that for the majority of situations this is not a problem at all. But during the campaign I met some District B residents while canvassing who actually expressed these types of concerns to me.

In one instance, a resident said that she had anonymously reported suspected drug activity in her neighborhood but wasn't satisfied with the outcome. She would have liked to have emailed her Councilor but didn't do so for fear it would not be anonymous. Who can blame her!

In other instances people had opinions about issues but simply didn't want to express those opinions in public for fear of criticism. Yet, the way the open records law is being interpreted those opinions would be open to the public once written down and sent to an elected official. These people's opinions matter. But the chilling effect is that they stay quiet.

My intention in setting up a private e-mail was to give people like this an outlet and to foster better communications. However, I now understand why that is problematic. Public records laws are important and on the whole, the right thing. Unfortunately, they can have an unintended consequence of inhibiting discussion about important issues. As my friend in Pennsylvania pointed out to me, only about 20% of public records requests are from the media. The rest come from citizens, businesses, and even prisoners. There is a real potential for abuse. The topic of balancing open government and privacy is important and worthy of further discussion. Perhaps you might have some recommendations for how citizens can raise concerns and maintain their anonymity.

It is important for all elected officials to follow the law in every matter and I will always do my best to do what's right and legal as a City Council member. Thank you again for your story. It was the first lesson of many I'm sure I will learn as a new City Councilor.

Best,

David Cox

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