CC: Chancellor; Provost; Vice Chancellor for Information Technology Systems

Dear Mr. White:

As you remark, in your letter of October 3, I have interpreted the Public Records Act of the State of North Carolina "to include any and every e-mail sent by an employee of the University, from a University e-mail address, with the use of the University’s central computing facilities and services." You correctly understand this interpretation of this one application of the law to mean that any e-mail message either sent from, or received from (i.e., sent from), a University employee’s address by a University employee "would be considered a public record." You then incorrectly understand this interpretation of this one application to mean, "there could never be a private transmission or reception, to or from anyone, for any reason, by a university employee at a university address." This second interpretation of the law may well be the correct one, but it is not the one I have offered in this instance. My interpretation of this one application of the law would not include messages sent from a non-University address, or from a University student address, and received by an employee at a University employee’s address. My interpretation would not include messages sent or received by a University employee with the use of an internet e-mail service, such as Hotmail, even if this employee used the University’s central computing facilities.

You then state three reasons you believe my interpretation is incorrect:

(1) You "do not believe such mails ["between parents and children, husbands and wives, and friends and neighbors . . . where one of the correspondents is a university employee, whether sending or receiving from a university address"] are public records." You refer to the "reasons stated in [your] letter of September 26." The one reason in this letter, which addresses "such mails," is the opinion that each such mail is "personal, and thus the property of a private person as set forth in GS 132-1.2 (2)." I rebutted this reason in my October 1 letter. I observed that this section of the Public Records Act has only to do with "trade secrets." You answer, in your most recent letter, "although the private person exception is related in part to trade secret protection, it is not by its terms limited to trade secret protection." This statement is false. The reference to "a private ‘person’" in this section is one element of an indivisible whole. ("G.S. 132-1.2 Confidential information. Nothing in this chapter shall be construed to require or authorize a public agency or its subdivision to disclose any information that: (1) Meets all the following conditions [my emphasis]: a. Constitutes a ‘trade secret’ as defined in G.S. 66-152 (3). b. Is the property of a private ‘person’ as defined in G.S. 66-152 (2) [Commerce and Business. "Person means an individual, corporation, government, governmental subdivision or agency, business, trust, estate, trust, partnership, association, joint venture, or any other legal or commercial entity."] c. Is disclosed or furnished to the public agency in connection with the owner’s performance of a public contract or in connection with a bid, application, proposal, industrial development project, or in compliance with laws, regulations, rules, or ordinances of the United States, or political subdivisions of the State.") I repeat: this section with its reference to "the property of a private ‘person’" has only to do with "trade secrets."

You also claim, in your most recent letter, "there is also a common law and a constitutional law right of privacy that exists where constitutionally crafted law and policy does not clearly limit it." I submit that the North Carolina Public Records Act and the University’s Computing Resource Use Policy meet the standard of constitutionality. The Public Records Act limits the "right of privacy" in relation to public records and provides no specific exception or exemption in the case of any State employee who uses State facilities to communicate any "private" or personal message (whether or not such a message states a "personal opinion in connection with general public discourse" or "current public policy debates"). The University’s Computer Resource Use Policy explicitly states that "users do not have an expectation of privacy regarding their uses of the system, and the issuance of confidential passwords or specific [e-mail] addresses should not be understood to provide an expectation of privacy." The University provides its "central computing facilities and services for the instructional, research, and administrative computing needs of the university." Therefore, "access to the university’s computing facilities and resources . . . is a privilege," not a right. This privilege carries no right of privacy. The Policy also states, "information contained on UNCW equipment and in UNCW accounts, including e-mail, if ‘made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina,’ unless subject to specific statutory exceptions and exemptions, may be subject to inspection under the Public Records Law of the State of North Carolina." The Policy warns every user: your use of a University e-mail address carries no expectation of privacy and your e-mail communications "may be subject to [public] inspection."

(2) You claim my interpretation is incorrect because "such an interpretation does not protect the privacy of individual persons and can chill private discourse over the public network." The Computer Resource Policy already rebuts any expectation of privacy in the use of the University’s central computing system.

(3) You claim my interpretation is incorrect because "the Computing Resource Use Policy was specifically drafted to make it clear that personal, private communications to and from employees are permissible and can and do exist." This statement is false. The Policy merely states, "occasional, brief personal uses are permissible"; it rebuts any expectation of privacy in these personal uses. It also puts seven different limitations on such uses. The enforcement of these limitations presupposes the public availability of each and every such use of the central computing facilities and services by a University employee.

You note that the relationship between Mike Adams and me, his status as a faculty member and my status as a student, is an "element" that differentiates his e-mail letter to me from other permissible uses. What is the nature of this difference? You offer no explanation. You evidently still believe Adams "was not speaking in his official role as a faculty member" and "was not transacting public business on behalf of the State of North Carolina" when he answered my e-mail letter to him, which addressed him as a faculty member. You entirely ignore my argument that, because I addressed Adams as a faculty member, he answered my letter in his role as a faculty member. You also ignore my criticism of your definition of the "official role" and "public business" of a University faculty member. You ignore the distinctive role of a faculty member in the furtherance of the "appropriate opportunities and conditions" of the freedom to learn "in the classroom, on the campus, and in the larger community."

I never claimed that the abusive nature of the e-mail letter Adams sent me turned a private e-mail communication into a public record. As you noted, I claimed "any and every e-mail sent by an employee of the University, from a University e-mail address, with the use of the University’s central computing facilities and services," is ipso facto a "public record." I merely rebutted your implication that the Computing Resource Use Policy permits such abusive e-mail messages.

I never claimed that the abusive nature of the e-mail Adams sent me turned a restricted publication into a public record. His e-mail letter to me is a public record, whether or not someone interprets it as a publication. I merely rebutted your implication that the Computing Resource Use Policy permits such abusive e-mail "publications."

You repeat your claim that the e-mail messages I wish to inspect are protected from disclosure either (1), as personnel files of State employees, by the personnel records exception to the Public Records Act, or (2), as personally identifiable education records, by the US Family Educational Rights and Privacy Act. I have said I have not asked to see either personnel records or education records. Not every communication between a faculty member and a member of the administration is a personnel record, and not every communication between a faculty member and a student is a student record. Personnel records consist in information on "the individual’s application, selection or nonselection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination of employment" (G.S. 126-22). Education records consist in personally identifiable records "directly related to a student," and "maintained by an educational agency or institution or by a party acting for the agency or institution" (FERPA, 34 C.F.R. Sec. 99.3). These records typically consist in academic transcripts, disciplinary and counseling files. I have asked to see the e-mail messages sent by a faculty member, Mike Adams, with the use of the University’s central computing facilities and services, from the address: adamsm@uncwil.edu, from September 15 to September 18. In the unlikely case these e-mail messages contain any personnel records or personally identifiable student records, I ask the University to separate the confidential information in these records from the other and nonconfidential information in these same e-mail messages. (G.S. 132-6 (c): "No request to inspect, examine, or obtain copies of public records shall be denied on the grounds that confidential information is commingled with the requested nonconfidential information. If it is necessary to separate confidential from nonconfidential information in order to permit the inspection, examination, or copying of the public records, the public agency shall bear the cost of such separation.")

I continue to ask the Office of Information Technology, and any other appropriate office or officer of the University, to let me and my representatives inspect the nonconfidential information in the e-mail messages Mike Adams sent, with the use of the University’s central computing facilities and services, from the address: adamsm@uncwil.edu, from September 15 to September 18, as public business, in accordance with the Public Records Law of the State of North Carolina. (G.S. 132-1 (b): "The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.")

Rosa T. Fuller

October 10, 2001