Mar 7, 2015 11:29 AM
Private email use a source of friction in many statehouses
The Associated Press
SALEM, Ore. (AP) The types of transparency questions surrounding Hillary Rodham Clinton's use of personal email to conduct business while secretary of state have led in recent years to access fights in state capitals throughout the country.
Governors and other elected officials routinely use private emails, laptops and cellphones for government business, a popular strategy that sometimes helps them avoid public scrutiny of their actions.
Open-records fights over private emails have had varying results.
"It's an issue that's becoming increasingly prevalent as we all have more and more accounts on social media and email," said Adam Marshall, a legal fellow on open government for the Reporters Committee for Freedom of the Press. "I think it's a real and serious problem at all levels of government across the nation."
Most state transparency laws were written before electronic communications were common, and they vary significantly in how they handle public business conducted through private accounts and devices.
Even in states requiring disclosure, it's tough to know whether officials are disclosing all relevant records when they are the only ones to have access.
The most recent statehouse skirmish over private emails is unfolding in Oregon, where former Gov. John Kitzhaber and his fianc e, Cylvia Hayes, are fighting on multiple fronts to keep their emails out of the public eye and away from federal investigators.
Kitzhaber resigned last month amid suspicions that Hayes used the governor's office to land contracts for her green-energy consulting business. She earned more than $200,000 from advocacy groups while serving as a volunteer adviser to the governor.
Emails from several personal accounts Kitzhaber used were archived on state servers, a move he says was inadvertent. Shortly before he resigned, a staffer tried to have them erased, but technicians refused and they were later leaked to Willamette Week, a Portland alternative newspaper.
Separately, Kitzhaber's fianc e filed a lawsuit against The Oregonian newspaper in Portland in an attempt to protect her own emails from a public records request. The state's attorney general has ordered that she give the newspaper emails from the multiple private accounts she used to interact with state officials.
Revelations this week that Clinton used her personal email account extensively to conduct official business have raised questions about whether she violated the language or spirit of transparency rules as she considers a 2016 presidential run. A State Department spokeswoman said no law prohibited Clinton from using her own email to conduct government business.
On Friday, the Obama administration said it would determine what parts of her official emails will be released publicly from her private account.
Government transparency advocates say the public has a right to know what their elected officials are doing with their tax dollars.
"If they can hide their communications and obscure what's going on in the discharge of their public offices by using personal email accounts, they are denying the public a fundamental right of transparency to understand what they're doing" said James Chadwick, a media and intellectual property lawyer in Palo Alto, California.
The media and members of the public have routinely fought for access in the states as the use of private accounts and devices has proliferated among elected officials and high-level government bureaucrats.
In California, the state Supreme Court is reviewing a lower court's ruling that said public officials' communications on private accounts are not subject to the state's public records law.
The Denver Post went to court in 2008 seeking access to personal cellphone bills for then-Colorado Gov. Bill Ritter, a Democrat. The Supreme Court eventually ruled that the records are not public, prompting a dissenting opinion from two justices who said the court gave public officials a path to conceal public business "for the price of a monthly cellphone plan."
The decision leaves the public with virtually no access to governors' communications because they use the state email account for only the most mundane issues.
In 2011, three years after they were first requested, the state of Alaska released more than 24,000 pages of emails from Sarah Palin's time as governor. The release was a response to public records requests filed when Palin was the 2008 Republican nominee for vice president. They showed she used three different accounts and regularly communicated with top aides who also used their own personal accounts.
Gov. Rick Scott of Florida has repeatedly tangled with public record advocates, media organizations and others over whether he has followed the state's transparency law, one of the broadest in the country.
Scott, a Republican, had insisted did not use private email accounts for state business.
"If anybody sends me an email to my private account, I do the right thing," he said in August 2014. "I try not to use my personal email for anything."
But emails disclosed to The Associated Press shortly after Scott's re-election in November showed he exchanged emails with top aides and others on topics that included vetoes, the state budget and his speeches.
It is not illegal to use private email accounts, but it is against Florida law to refuse to turn over emails if requested. Scott is currently being sued by a Tallahassee attorney who contends that Scott has routinely flouted the law and ignored public record requests. The Scott administration has called the lawsuit "baseless."
In Kansas, a bill would require disclosure of official emails from private accounts. It's a response to disclosures that the budget director for Republican Gov. Sam Brownback used a private email account at least twice in December to circulate a summary of budget proposals being considered by the administration.
The group receiving the emails included two lobbyists with ties to the governor. They were sent weeks before lawmakers saw details of the governor's budget proposals.
In New Mexico, Republican Gov. Susana Martinez has been sued by news organizations seeking access to her work and travel schedules, cellphone calls and the expenses of her security detail. A state district judge ruled last month that Martinez's personal and political calendars are not public records because the documents were maintained by Martinez on her personal devices.
Susan Boe, executive director of the New Mexico Foundation for Open Government, said it should not matter whether governors and other elected leaders are using personal smartphones or email accounts to conduct business.
"We don't think there's any special protection just because it's on a private email," she said.
Associated Press writers Becky Bohrer in Juneau, Alaska; Susan Montoya Bryan in Albuquerque, New Mexico; Gary Fineout in Tallahassee, Florida; John Hanna in Topeka, Kansas; and Kristen Wyatt in Denver contributed to this report.
Follow Jonathan J. Cooper at http://twitter.com/jjcooper.