Last week, reporters, editors, publishers and public affairs folks gathered for the annual Mississippi Press Association convention in Biloxi. As an associate member, I attended a workshop called "Sunshine and FOI Update" discussing open government and the freedom of information.

We discussed a hypothetical situation similar to a February open records request by The Clarion Ledger for four days of e-mails from the office of Gov. Haley Barbour (staff of around 40 people).

The request was part of an exercise in government sunshine. Chris Joyner a reporter at The Clarion-Ledger who blogs on First Amendment issues explained the purpose of the request in a post: "First, it was part of a national effort to see whether governors' offices across the nation were properly archiving their e-mails the same way they do any other public document...Second, the project aims to measure the public's ability to access those e-mails."

In our workshop's discussion, I suggested such a request could have a chilling affect on press relations or whistleblower opportunities. As a hypothetical example, let's say a government employee is working with a Sun Herald reporter on a sensitive issue and speaking off-the-record or on background. The employee trusts that reporter to keep his cover both in published articles, but also from the employee's colleagues. Then, the Meridian Star requests the office e-mails. The office vets them and turns them over. Now not only do the employee's colleagues know what he told reporters, but so does everyone else. This produces a less honest, less frank, less blunt, less open communication with all reporters by all staff in the future.

The workshop moderator was not willing to step away from his position that those e-mails are still public records. Furthermore, deleted e-mails could likely be recovered (and be seen as destroying public records) and using a non-government e-mail address (webmail/Gmail/AOL/Yahoo) on a government computer would, in the moderator's mind, still be applicable to an open records request.

In my response to the question of a chilling relationship with the press, the answer was to use the phone rather than e-mail. Let's hope that the next step is not to digitally record everyone's phone conversations and make those accessible as well.

Would you want a reporter or your boss to read all your e-mails: the jokes, correspondence with a spouse or kids or friends, your opinions on co-workers or other juicy gossip?

My libertarian streak opposes government secrecy, but advocates personal privacy. So where do we draw the line between individual privacy (including government employees) and the public's right to know?

One extreme says there is no line. Government time; government computer; government e-mail means an employee paid by the taxpayers of Mississippi should expect no privacy in their e-mail or communications and all are subject to an open records request.

Another extreme says there is a privacy wall. Government employees presume their e-mails are private communications and they should not be subject to review from their colleagues, their bosses, the press, or any other Big Brother.

In the private sector, many businesses institute a policy specifying internet and e-mail use for company business only while making certain allowances for occasional personal use. Due to the pervasive, casual and informal nature of e-mail, litigants often seek these records in disputes involving individuals or companies. Ted Claypoole of Womble Carlyle Sandridge & Rice recently told the National Law Journal, "For years, courts just assumed that e-mail was discoverable and viewable, and it looks to me like courts are changing direction and questioning that position." The NLJ notes that the U.S. District Court for the Eastern District of Virginia ruled the Stored Communications Act allows for e-mail access in criminal cases with a search warrant, but protects e-mail in civil litigation except with "consent of the e-mail subscriber, the sender of the message or the recipient."

There may be some question, just as is now being raised in the private sector, of whether any or all e-mails even qualify for review as public documents. If e-mails qualify, then what about text messages sent from government cell phones? If text messages qualify, then what about instant messages sent via AOL/Yahoo/MSN/Gtalk on government computers?

I expect we are in a transitional time when technology moves faster than our laws. In the future, public employee groups or privacy advocates may legislatively (or via the courts) restrict access to personal communication even by open government means.

But the speed of such a development will depend on public servants and the media. Public officials should be open and responsive to the press. Journalists should not use the law as bludgeon to create unnecessary busy work for the sake of an exercise. When both play nice, both win, and so does the public.

Ultimately an informal conclusion in the press workshop was that the best solution is forging a good relationship between reporters and sources. It makes work easier for all parties and better serves the public.

Brian Perry of Jackson, a former congressional aide, is a partner in a public affairs firm. Reach him at