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Fall 2008 Bulletin
FOIA and Access
Roundup: Government E-mails as Public Records
Several state and federal cases in the summer and fall of 2008 underscored the need to define the parameters of public access policies and retention procedures regarding government employee e-mails. (For more on the role of new technology in public records, see “Detroit Newspapers Sue for Release of Text Messages in Mayoral Sex Scandal” on page 20 of this issue of the Silha Bulletin.)
Gov. Sarah Palin’s E-mails
An Alaska state judge ruled Oct. 10, 2008 that government-related e-mails sent by Alaska Governor and former Republican vice presidential candidate Sarah Palin and her staff from private e-mail accounts had to be retained and preserved, according to The Associated Press (AP).
Alaska Superior Court Judge Craig Stowers ordered that e-mails sent between Dec. 4, 2006 and the date the litigation concludes that relate to “the conduct of official business of the state of Alaska” must be preserved. Stowers made the ruling in a lawsuit brought by Anchorage resident Andree McLeod, according to an October 11 Anchorage Daily News story. McLeod sued to have the e-mails preserved so that she can file open records requests to review the e-mails under Alaska’s open records law, Alaska Stat. §§ 40.25.100–125, the AP reported.
E-mails sent from Sarah Palin’s official government e-mail address are subject to Alaska’s open records law. However, according to an October 4 AP story, Palin and her staff frequently used private Yahoo accounts instead of government e-mail addresses to conduct official state business. Stowers’ order also asked for further argument from attorneys on whether it was appropriate for Palin and her staff to use personal e-mail addresses for state business, according to the AP.
McLeod originally filed a public records request on June 17, 2008 seeking release of e-mails sent and received by two top aides to Sarah Palin from February through April of 2008, according to a September 7 Mother Jones blog post available at http://www.motherjones.com/mojoblog/archives/2008/09/9620_sarah_palin_secret_email.html.
Palin’s office released to McLeod four boxes containing copies of e-mails, but claimed executive privilege with respect to others, according to a September 10 Washington Post story. Palin said the privilege protects communications between the governor and her aides on policy matters, Mother Jones reported. Palin also said that e-mail communications copied to her husband, who is not a state employee but advises the governor on a union for public safety workers and Alaska State Trooper issues, were protected by executive privilege from disclosure, according to The Washington Post.
Palin’s office withheld 1,100 e-mails. A list cataloguing the e-mails Palin’s office refused to release was included with the four boxes of redacted e-mails, Mother Jones reported.
The Anchorage Daily News reported October 11 that McLeod filed another public records request on October 1, the same day she filed her lawsuit seeking preservation of the e-mails. McLeod specifically requested copies of all e-mails sent and received from Palin’s private e-mail accounts and her husband Todd Palin’s e-mail account.
McLeod is seeking to investigate Palin’s use of non-government e-mail accounts for state business, according to the AP. The Reporters Committee for Freedom of the Press reported September 18 that McLeod was also concerned that Palin was conducting political party activities on state time, in violation of state law.
Palin’s e-mail account with Yahoo has been closed, the AP reported, because the address was compromised in September 2008. Hackers broke into the account and circulated on the Internet a number of personal messages Palin had received at her Yahoo address after she had been selected as John McCain’s running mate.
Alaska-based media organizations have been deterred from making public records requests from the governor’s office for copies of e-mails because of the costliness of the requests. Palin’s office has quoted a price of $15 million to news organizations and private citizens for copies of state e-mail, according to an October 17 MSNBC.com story.
MSNBC.com reported that in response to an AP request for copies of all state e-mails sent to Todd Palin, Palin’s office said it would take about 13 hours to reconstruct e-mails sent from one state employee to Todd Palin. At $73.87 per hour, the cost for one e-mail account would be $960.31. With 16,000 employees on the state payroll, the cost of retrieving all the state e-mails sent to Todd Palin would exceed $15 million.
According to Alaska public records law, Alaska Stat. §§ 40.25.110, the state is not required to charge fees for processing records requests, but the law provides that fees are allowed if processing would take more than five hours.
Small newspapers in Alaska have cancelled their public records requests for electronic communications after learning that the process would be costly, MSNBC reported. A weekly paper, the Anchorage Press, withdrew its request after learning that it would have to pay $6,500 for e-mails from Palin and three aides regarding the lieutenant governor.
Missouri and Ohio
In Missouri, Gov. Matt Blunt agreed as part of an October 2008 legal settlement to disclose e-mails at no cost to news media outlets that had sued his administration after Blunt’s staff members ignited controversy when they said in 2007 they frequently deleted e-mails.
Blunt told the AP for a Sept. 25, 2007 story that he was in compliance with Missouri’s open records law and stated “I probably have four or five different e-mail accounts, like lots of people. Some e-mails I might keep a long time. Some e-mails I delete as soon as I receive, and will continue to do so.”
Missouri’s open records law, Mo. Ann. Stat. § 610.010, includes e-mail communications in its definition of a public record. The state’s retention policies vary with respect to the nature of the communications, but correspondence related to the development or implementation of government policies must be retained permanently.
On Oct. 31, 2007, the AP filed a public records request seeking e-mail records for several top Blunt staff members. Blunt’s office told the AP it would cost $23,625 to comply with the AP’s request.
Two court-appointed special assistant attorneys general investigating whether the governor complied with open records requests and e-mail retention standards filed a lawsuit against Blunt. Several news organizations, including the AP, St. Louis Post-Dispatch, and The Kansas City Star, which had also filed public records requests for the governor’s e-mails, intervened in the lawsuit.
As part of the settlement announced Oct. 15, 2008, Blunt agreed to give the news organizations thousands of e-mails for free. Blunt’s lawyer told the AP that the governor wanted to resolve the legal battle before his term ends in early January 2009. He is not seeking re-election, according to the AP.
In Ohio, the State Supreme Court heard arguments on Sept. 16, 2008 on the issue of whether deleted e-mail constitutes a public record that can be subject to open records requests.
The (Toledo, Ohio) Blade is seeking access to a number of e-mails deleted by Seneca County, Ohio commissioners from their computer hard drives. The newspaper alleges the e-mails might contain illegal communications related to the proposed razing of the county’s courthouse before a public vote was conducted on the matter. It brought a lawsuit against the county because it wanted it to pay for a forensic expert to recover e-mails deleted from government computers during an 18-month period beginning Jan. 1, 2006, according to a Sept. 17, 2008 Blade story.
The Blade filed a public records request pursuant to Ohio’s open records law, Ohio Rev. Code Ann. § 149.43, and the commissioners provided some e-mails in response to the request. After the newspaper filed a lawsuit, the commissioners turned over another 700 pages of e-mails. The Blade reported the commissioners said many e-mails had been deleted.
The cost of hiring a forensics expert would be between $1,000 to $2,500 per computer, according to The Blade. But Seneca County said that it would cost tens of thousands of dollars to hire an expert. “If the court doesn’t rule fully in our favor, then it will mean that any official will be able to legally cover his tracks and misdeeds by a simple click on the computer’s delete button,” The Blade’s Co-publisher and Editor-in-Chief John Robinson Block said, according to the September 17 Blade story. The court has not rendered a decision.
Federal Office of Administration
In two separate rulings, the U.S. District Court for the District of Columbia addressed the White House’s failure to retain and preserve e-mail communications sent and received by White House personnel from 2003 to 2005. The court found that although the federal Freedom of Information Act (FOIA) does not require the Office of Administration to provide access to records concerning the loss of its e-mails, watchdog groups may challenge the Executive Office of the President’s e-mail retention policies under the Federal Records Act.
In the first of two rulings, Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia ruled June 17, 2008 that the Office of Administration (OA) does not have to provide public access to records regarding millions of possibly missing White House e-mails under FOIA, according to the AP.
The case was triggered by an investigation conducted by a watchdog group, Citizens for Responsibility and Ethics in Washington (CREW), into the loss of e-mails sent or received by White House personnel. In a report issued April 13, 2007, CREW concluded that the White House had lost approximately five million e-mails from 2003 to 2005, a crucial period in the Bush Administration. The United States launched its invasion of Iraq on March 20, 2003, and the White House leaked former CIA officer Valerie Plame’s name in July 2003, instigating a Department of Justice investigation. CREW filed a lawsuit in May 2007 against the OA under FOIA seeking internal records regarding the White House’s loss of the e-mails.
According to a Jan. 17, 2008 Washington Post story, the White House might have lost the e-mails because it recorded e-mail messages sent and received by White House personnel on recycled tapes. The White House used the same backup tape each day to copy new and old e-mails.
The Presidential Records Act (PRA), 44 U.S.C. §§ 2201–2207, requires the White House to preserve documents and records, including electronic communications, while the President is in office. Upon the conclusion of a President’s last term, the Archivist of the United States assumes responsibility for custody and preservation of the records. Documents subject to the PRA can only be released to the public five years after the President’s last term. Presidential records are not subject to public access during the President’s term in office.
The Federal Records Act (FRA), 44 U.S.C. § 3301, requires heads of federal agencies to develop standards for preserving and maintaining records, including e-mail communications. Agencies subject to the FRA must comply with FOIA, which governs public requests for electronic records to federal agencies, departments, and executive branch offices.
The issue in CREW v. Office of Administration, 565 F.Supp.2d 23 (D. D.C. 2008), was whether the OA constitutes an “agency” under the FRA that is required to provide access to internal documents to CREW under FOIA. Kollar-Kotelly determined that the OA does not exercise sufficient “substantial independent authority” in conducting its activities to constitute an agency subject to FOIA. The OA does not have authority over others in the executive branch and only provides services to the Executive Office of the President. Therefore, it is not required to provide access to internal paperwork regarding the loss of the White House e-mails under FOIA.
The OA has responded to information requests since 1978 and responded to 65 FOIA requests in 2006, according to an Aug. 23, 2007 Washington Post story. However, the OA reversed its practices after CREW’s lawsuit was filed in 2007 and stopped submitting to FOIA requests, according to the AP. CREW plans to appeal the decision, the AP reported, even though the Bush Administration’s term in office will conclude in January.
In the second case before the District of Columbia federal district court, Judge Henry H. Kennedy, Jr. ruled Nov. 10, 2008 in favor of the plaintiffs, CREW and the National Security Archive (NSA), who brought a lawsuit against the Executive Office of the President, challenging the agency’s failure to retain and preserve e-mail communications under the FRA and Administrative Procedure Act (APA), 5 U.S.C. § 706.
In the consolidated actions CREW v. EOP, No. 07-01707, and NSA v. EOP, No. 07-01577, CREW and NSA, a non-profit research library that publishes government documents on national security, allege that the EOP has violated the FRA by failing to implement an adequate system to ensure the preservation of e-mail records. The groups are seeking a court order requiring the Archivist of the United States to request action from the Attorney General to restore the deleted e-mails, according to the court’s opinion.
Under the FRA, 44 U.S.C. § 2905, if a head of an agency does not initiate action for recovery after being notified by the Archivist of the destruction of records in the custody of the agency, the Archivist can request the Attorney General to initiate an action for recovery. CREW and the NSA claim the Archivist has been notified of the loss of five million White House e-mail records, but has not requested any recovery action to date. Therefore, the Archivist is violating his statutory duty under the FRA, according to plaintiffs’ complaint filed Sept. 5, 2007.
The government argued that the plaintiffs’ claims should be dismissed because they seek compliance with the PRA, which does not allow judicial review. But Judge Kennedy concluded the PRA does not bar the lawsuit, according to the court’s opinion. Rather, there is limited judicial review under the PRA to ensure that nonpresidential records are not classified as Presidential records and are maintained separately, Kennedy said.
Kennedy also rejected the government’s motion to dismiss the lawsuit because the FRA allows judicial review of compliance with agency guidelines. Therefore, the court may hear claims that the Archivist has not fulfilled his statutory duty. Furthermore, the APA authorizes review of the adequacy of an agency’s recordkeeping guidelines and directives, Kennedy ruled. The court’s ruling allows CREW and the NSA to proceed with their case against the government.
Sheila Shadmand, an attorney from the law firm Jones Day, which is representing NSA, said the ruling will protect the e-mail records “before they get carted off or destroyed as the current administration packs its bags to leave,” according to the AP.
Federal Bill Aims to Preserve Executive E-mails
Representative Henry Waxman (D-Calif.) introduced a bill in the House in April 2008 that would provide new standards for the capture, management, and preservation of White House e-mails and federal agency communications, potentially avoiding the problem of lost or deleted White House e-mails like those at issue in the CREW case. The Electronic Communications Preservation Act, H.R. 5811, was referred to the Committee on Homeland Security and Governmental Affairs on July 10, 2008.
The bill seeks to implement new oversight procedures to ensure that government agencies institute standards for e-mail retention, instead of allowing their employees to delete e-mails. Under FOIA, e-mails constitute public records, but that access is meaningless if government employees fail to retain their e-mails in an adequate recordkeeping format.
A July 8, 2008 General Accounting Office (GAO) report found that four federal agencies do not comply with requirements to preserve e-mail records. In a survey of the Department of Homeland Security, the Department of Housing and Urban Development, the Environmental Protection Agency, and the Federal Trade Commission, the GAO found the agencies were relying on outdated recordkeeping systems to store their e-mail records.
“If recordkeeping requirements are not followed, agencies cannot be assured that records, including information that is essential to protecting the rights of individuals and the federal government, is [sic] being adequately identified and preserved,” Linda Koontz, the GAO’s director of information management issues, wrote in the report.
The National Archives and Records Administration (NARA) is responsible for overseeing federal agency e-mail policies pursuant to the FRA. But the GAO report stated that NARA had conducted only limited oversight of agency e-mail preservation policies.
Codified at 2 C.F.R. § 1234, the NARA regulations dictate that government agencies must implement an agency-wide program for managing and retaining electronic records, including e-mail communications. E-mail records may only be destroyed with the approval of the Archivist of the United States. Government agencies with e-mail programs that do not have recordkeeping functions must print their e-mails out and file them.
With respect to nonpresidential federal records, the NARA can demand an explanation from any federal agency that it thinks is mishandling records. It can also seek a Department of Justice probe, according to a Jan. 22, 2008 Washington Post story.
– Amba Datta
Silha Research Assistant
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