USA TODAY - State officials keep e-mail from view

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TRENTON, N.J.
By Tom Hester Jr., Associated Press

In New Jersey, the governor's e-mails might shed light on whether he inappropriately conferred with a labor leader he once dated. In Detroit, the mayor's text messages revealed a sexually charged scandal. In California, a fight rages for access to e-mails sent by a city councilwoman about a controversial biological laboratory.

Even the White House has been under pressure from Democrats in Congress over its problem-plagued e-mail system.

While e-mail and text messaging has become a hugely popular way to communicate throughout society, governments at all levels are often unwilling to let the public see the e-mails of their elected officials.

Officially, e-mails in all but a handful of states are treated like paper documents and subject to Freedom of Information requests. But most of these states have rules allowing them to choose which e-mails to turn over, and most decide on their own when e-mail records are deleted.

"There seems to be an attitude throughout government at all levels that somehow electronic communications are of its own kind and not subject to the laws in the way that print communications are," said Patrice McDermott, director of OpenTheGovernment.org.

"So we keep hearing reports of governors and mayors who decree that their e-mail records can be destroyed, in six weeks or six months, with no appraisal for permanent value and no review by an independent body," she said.

Open records advocates contend by keeping electronic communications private, states are giving their elected officials an avenue to operate in secret they use taxpayer-funded computers to send and receive e-mail but with little or no obligation to make such communications public.

"The public needs to realize that is their possibility for accountability and historical review that is being put through the electronic shredder," McDermott said.

New Jersey Gov. Jon S. Corzine is fighting in court to keep secret his e-mails with ex-girlfriend Carla Katz, the leader of a powerful union representing thousands of state workers. State Republicans sued when Corzine refused to turn over his e-mails.

"He seems to think he's still running a private company where he gets to set the rules and ignore them when it serves his purpose," said Tom Wilson, the New Jersey Republican Party chief. "He isn't doing business. He's leading a government established by and for the people."

Corzine says he's protecting privileges afforded governors to keep communication private while also keeping his personal life shielded from public examination.

"I think in the American system, people believe that people have a right to a private life," Corzine said.

Corzine is among several governors who say they don't use e-mail. But without a system that grants access to e-mails, open records advocates wonder how the public would know if that's true.

Frequent denials

An Associated Press survey conducted in conjunction with Sunshine Week, a nationwide effort to draw attention to the public's right to know found e-mails for governors in at least seven states are officially exempt from disclosure under the Freedom of Information Act.

But even in the other states, access to e-mail is limited, at best. Public records guardians decide which e-mails they'll turn over and which ones they won't.

"Now that e-mail has replaced faxes and standard mail as the preferred mode of communication, it is important that these e-mails fall under open public records acts," said Heather Taylor of the Citizens' Campaign, a New Jersey-based group fighting for open government.

Public access to elected officials' e-mail is largely an untested area of open records law, even as government e-mail use proliferates.

"This is becoming a pretty hot issue," said Karl Olson said, a San Francisco attorney representing a newspaper in a fight to get e-mails from a city council member.

State laws vary on how long e-mails must be retained, and some states charge exorbitant fees for providing copies of e-mail. There's also debate whether e-mail sent by a public official from private accounts should be subject to Freedom of Information requests.

"Some authorities purge old e-mails sooner than others," said Bill Lueders, president of the Wisconsin Freedom of Information Council. "And the Legislature, in its wisdom, exempted itself from the retention rule in place for other state officials so lawmakers can simply delete e-mails that may point to unethical or criminal conduct."

Wisconsin law defines public records as books, papers, maps, photographs, films, recordings and electronically formatted documents.

The state Department of Justice issued a compliance guide to local government officials last year that said e-mails created in connection with official business are generally considered public record. No legal precedence in Wisconsin, however, addresses whether personal e-mail received or sent on government equipmment is considered a public record, the guide said.

Across the country, denials of requests for electronic communications seem to be commonplace.

Journalists from the Detroit Free Press sought access to text messages sent between Detroit Mayor Kwame Kilpatrick and his chief of staff, Christine Beatty. The Free Press was unable to get access to the messages through a records request, but still got about 14,000 text messages on Beatty's city-issued pager from 2002 and 2003 through another source it hasn't named.

The Free Press' parent company, Gannett, also owns USA TODAY.

SUNSHINE WEEK: Text messages enter public-records debateQUIZ: How much do you know about open records?

Those messages unleashed a sexually charged text-messaging scandal that has prompted calls for Kilpatrick's resignation.

The mayor's office contends the text messages don't fall under public information requirements because they were transmitted on a leased device, not on city-owned equipment.

When governments do release e-mails voluntarily or not these documents can prove revealing to the public. For example:

In 2005, several media outlets, including the AP, sought e-mails from the office of Jim Black, then the House speaker in North Carolina, about possible lobbying work performed by his political director, who was also working for a lottery company seeking to do business for the state.

Black eventually released documents sought by a federal grand jury and 300 additional pages of e-mails, some of which showed his political director was actively lobbying the speaker even though she wasn't registered to lobby.

E-mails obtained by AP in Iowa showed how the staff of Gov. Chet Culver formulated a public statement following August's bridge collapse in neighboring Minnesota. The e-mails show a staff eager to assure citizens of their safety, but at odds over what kind of guarantees the governor could offer that Iowa's bridges were safe.

Retention rules questioned

The issue of e-mail retention is acute in Texas, where the governor's office deletes e-mails regularly on a weekly basis for e-mails not deemed to be of public importance.

As in most states, the Texas governor's e-mails are considered open records unless they fall into exceptions, such as legal negotiations or state security. Otherwise, e-mails from a state agency can be requested and must be provided.

The Texas retention policy prompted a fight with a Wisconsin man who in November began asking Gov. Rick Perry's office for several days worth of government e-mails. The man, computer consultant John Washburn, launched twice-weekly computer-generated requests to Perry's office.

Perry's office initially hesitated to provide the e-mails, but then agreed providing Washburn paid for the cost of what it said was staff time spent sorting through which ones could be released. The bill came to $568 for the first four days of requested messages.

Washburn said he wonders whether Perry's seven-day e-mail deletion policy is really about eliminating only "transitory" messages.

"I think the more obvious explanation is e-mails come back to bite you," he said.

In Missouri, e-mail retention policies drew attention last September after the Springfield News-Leader, a Gannett newspaper, reported Gov. Matt Blunt's office had denied an open-records request for e-mails from his chief of staff, Ed Martin. The News-Leader sought information about Martin's communications with anti-abortion activists about a Planned Parenthood lawsuit.

Martin, who has since resigned, told the newspaper that he didn't save the e-mails.

Blunt later acknowledged he and his staff routinely delete some e-mails, although Blunt denied that his office violates state law. Others in government, including staff for Attorney General Jay Nixon, also acknowledged deleting some e-mails but denied any legal violations.

Blunt has ordered work to begin on a $2 million plan to archive government e-mails in response to concerns about deletions in his office and elsewhere.

That issue is also a concern in New Jersey, where the state attorney general's office said e-mails sent and received by top officials in former Gov. James E. McGreevey's administration were deleted from state computers, despite regulations dictating electronic records must be reviewed and archived.

McGreevey was elected in 2001 and resigned in 2004 after announcing he was gay and had an affair with a male staffer.

'Willful delusion'

Don Craven, a lawyer who represents the Illinois Press Association, said most court cases over electronic records involve fees, not access to the documents.

For instance, in Missouri, the AP requested copies e-mails for several people in the governor's office, prompting the governor's office to respond with a cost estimate of more than $20,000.

"Some want us to pay for the systems to maintain the records, while we think we only need to pay the cost of reproduction," Craven said. "We usually win that one."

In California, the Tracy Press sued the city of Tracy to obtain e-mails between Councilwoman Suzanne Tucker and the Lawrence Livermore National Laboratory over the possible siting of a biological laboratory in 2006. A San Joaquin County Superior Court judge ruled in August that the e-mails are not public records because they were sent and received at Tucker's personal computer at her home.

"The big question at this stage is whether or not a public official can avoid the requirements of the law by simply going home at night and using a personal computer," said Tom Newton, general counsel for the California Newspaper Publishers Association.

That's the issue in San Francisco, where messages to Mayor Gavin Newsom about a fuel spill were sent to and from Newsom's personal iPhone, said Newsom spokesman Nathan Ballard, and were sought by a citizen not affiliated with the news media.

"We're not going to start handing over the personal messages of someone just because they work for the city," Ballard said.

The messages were between Newsom and his chief of staff and involved the city's spill response, Ballard said.

"We're not going to violate the person's privacy and hand over messages they receive on their personal cell."

McDermott questioned such reasoning, which she described as "willful delusion."

Utah's open-records law was enacted in 1991 before e-mail became an established form of communication. but Utah Attorney General Mark Shurtleff advises state officials and agencies to treat e-mail like other government records subject to disclosure, his spokesman Paul Murphy said.

State officials can delete only junk mail, personal notes, calendar items and draft memorandums on state policy, which means they save most of their e-mails; Murphy said he had 7,772 items in his inbox in early January.

Washington, D.C.'s Freedom of Information law states that the public has a general right to inspect or copy "any public record of a public body," but community activist Dorothy Brizill, of the group DCWatch, said requests for e-mail correspondence often are met with the response "no records exist."

Last year, Mayor Adrian M. Fenty issued an order that would have purged most city e-mails after six months. Brizill raised alarm and, faced with pressure from the city council, the mayor withdrew the order in November.

"We have an administration that functions with e-mails," Brizill said. "They don't write memos. If you want to know how a decision was made and why, it's critical to have access to the electronic correspondence."

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