Dark Clouds: Can Government Agencies Evade Public-Records Laws by Storing Documents in Privately Owned Digital Portals? Frank D. LoMonte, Adjunct Instructor, University of Georgia School of Law. Newsroom Legal Counsel, Cable News Network, Inc. J.D., University of Georgia School of Law, 2000. B.A., Georgia State University, 1992.

“Laws enabling the public to inspect government records are regarded as foundational to a well-functioning democracy. However, reminiscent of a playground game of “keep away,” government agencies increasingly are taking advantage of technology to withhold records from inquisitive requesters by claiming – in sophistry reminiscent of Clinton’s – that they do not actually possess particular documents, because the records are stored in a digital “cloud” operated by a third party. Indeed, government decision-makers have taken to using virtual storage methods for the express purpose of evading laws that require agencies to disclose documents in their custody. No custody, the argument goes, no disclosure…This Article looks at the issue of whether government agencies may legitimately ignore requests for public records on the basis that the records never came into the physical possession of agency employees. It concludes that interpreting open-records laws in such a narrowly literal way would undermine the purpose of these disclosure statutes, which are supposed to be generously interpreted in favor of access to give effect to their remedial good-government intent…”