E-mails and Electronic Records
Of 26 European countries surveyed, the ATI laws of 24 apply to e-mails: Albania, Armenia, Belgium, Bosnia & Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark, France, Georgia, Germany, Hungary, Ireland, Latvia, Macedonia, Moldova, Montenegro, Netherlands, Norway, Romania, Serbia, Slovakia, Slovenia, Turkey and the United Kingdom. The only clear exception is Sweden. Jurisprudence in Hungary suggests that emails may be excepted.
It appears that most “modern” ATI laws, passed since 1990, apply to emails and electronic records, or at least, do not expressly exclude them. Moreover, some laws – such as Canada’s – by their terms require authorities to generate electronic documents in response to requests, if generating the documents would not be unduly burdensome.
Canada
Machine readable records such as electronic mail are considered records for purposes of coverage under the ATI Act. Moreover, Section 4(3) provides: “For the purposes of this Act, any record requested under this Act that does not exist but can, subject to such limitations as may be prescribed by regulation, be produced from a machine readable record under the control of a government institution using computer hardware and software and technical expertise normally used by the government institution shall be deemed to be a record under the control of the government institution.”
France
In France, although the administration is not compelled to create a document to meet a request, documents which can be created through a computerized process have to be produced (such as lists, for instance).
UK
The FOI Act includes emails and any form of information stored on computers.
USA
The FOIA applies to emails and all electronic records that can be considered “agency records.” The FOIA was amended in 1996 to specifically include as agency records information maintained in any format, including an electronic format. 5 U.S.C. § 552(f)(2). Therefore, emails and other electronic records are subject to disclosure. The FOIA also states that agencies “shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system.” § 552(a)(3)(C).
On October 30, 2009 the Supreme Court of Arizon in the case of Lake v. Phoenix ruled that City was obliged to disclose metadata (electronic information concerning the history of an electronic document) pursuant to state freedom of information law. The summary of the case and the judgment can be found here.
