in Houston, Texas
Govs to public: Stay out of our e-mail
Monday, Sep 15, 2008, 06:00PM CST
By Jennifer Peebles
Alaska Gov. Tina Fey -- woops, sorry! -- Gov. Sarah Palin certainly isn't the only state official in the country trying to get around public records laws by using "personal" e-mail accounts to discuss state business.

In doing so, she's a member of a club that also includes Texas Gov. Rick Perry.

Freedom-of-information issues in Alaska don't usually make national headlines, but now that Palin is on the Republican ticket, her administration's attempts to circumvent FOIA laws have broader ramifications.

Staffers in Palin's administration used their personal e-mail accounts to discuss state business in an effort to avoid public disclosure, according to a substantial piece in Sunday's New York Times. In one case, when a scientist wanted to look at state-issued e-mails regarding research on the effects of global warming on polar bears, the administration told him he'd have to pay $468,784 to get them. (He later got them through a federal FOIA request.)

This is just the latest public-records issue regarding government e-mail since public officials began using it widely. You might remember that it was alleged in last year's controversy over political hirings-and-firings of U.S. attorneys that staffers in the Bush White House used their Republican National Committee e-mail accounts to discuss public business and get around FOIA. And New Jersey Gov. Jon Corzine, a Democrat, swore off using e-mail all together last year after Republicans tried to get access to e-mails on his state account that he swapped with an ex-girlfriend who is also a union boss.

In Texas, Gov. Rick Perry claims his e-mails aren't public, either, saying all his e-mailing is done through his personal e-mail account, and thus is not subject to disclosure.

From an Austin American-Statesman story last year:
The governor doesn't have a state computer and has no state e-mail account, (Perry spokesman Robert) Black said.

That doesn't mean Perry doesn't use e-mail. But his e-mail account is personal and therefore not subject to open records laws, Black said.

That's not true, said Joel White, immediate past president of the Freedom of Information Foundation of Texas, a nonprofit organization dedicated to protecting and preserving the state's open meetings and open records laws.

"I don't think it makes any difference what computer he writes on any more than it makes a difference whether he uses government-issued stationery," White said. "The question is: Is he sending personal correspondence or does it relate to official business? If it's official business, it's an open record."

Alaska's public information law is tougher than Texas' law when it comes to e-mails, according to the rankings done by the Marion Brechner Citizen Access Project at the University of Florida. Alaska's law got a 4 rating on e-mail access -- defined as a "partly cloudy" outlook, "neither more open nor more closed" -- while Texas' law got a 2 rating -- "nearly dark - mostly closed." (For the record, neither state has a particularly tough law -- both scored F's overall on the most recent state-by-state FOI comparison done by the National Freedom of Information Coalition and the Chicago-based Better Government Association.)

Alaska's FOI law doesn't specifically mention e-mail, the Citizen Access Project says, but it "does define public records 'regardless of format or physical characteristics'" -- it's format-agnostic, perhaps? On the flip side, case law in Alaska regarding e-mail disclosure got a 1 rating -- "dark - completely closed," and the CAP cited the 2000 Alaska Supreme Court ruling in the case of Gwich'in Steering Committee v. State of Alaska, Office of the Governor.

No, the governor who got sued in that case wasn't Palin, it was Democrat Tony Knowles. A nonprofit group that wanted to protect the porcupine caribou herd sought access to records pertaining to Knowles' efforts to lobby for oil drilling in the Artic National Wildlife Refuge -- an issue that is even hotter today than it was in 2000. In that ruling, Alaska's Supremes said, as best we can tell, that disclosing e-mails by government officials deliberating on some big decision would "deter the open exchange of opinions and recommendations between government officials."

Ack. That's depressing. So we'll end on this spirit-rejuvenating quote, from the introductory section of the Texas Public Information Act:
Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

And if that doesn't make you feel better, watch that Sarah Palin-Hillary Clinton sketch from Saturday Night Live again at this link.

One addendum: To see how governors across the country deal with FOIA requests for their e-mails, check out this entry on Sunshine Review on the informal survey facilitated by the WikiFOIA Governors Project.

Tips? Comments? Complaints? Post 'em in the comments below or e-mail me at jennifer@texaswatchdog.org. And don't forget to follow us on Twitter at texaswatchdog.
Comments
Benjamin Wright
Thursday, 09/18/2008 - 10:58PM

On account of Open Records Acts, state governments are wise to insist that employees (including governors) route all business e-mail through a central e-mail archive and to encourage employees to take all personal e-mail to personal accounts. --Ben http://legal-beagle.typepad.com/wrights_legal_beagle/2008/08/local-government-e-mail-and-the-freedom-of-information-act.html

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