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Iowa governor to release e-mails sent from private computers

By The Associated Press
05.06.09

IOWA CITY, Iowa — Iowa Gov. Chet Culver will allow public access to e-mail he sent in his first two years in office using private computers and non-government servers, a move that follows criticism that he was using private e-mail accounts to dodge public-records law.

Freedom-of-information advocates called the decision a step forward for transparency in state government that counters a trend of public officials who deny access to electronic correspondence.

Joseph P. Sandler, a Washington, D.C.-based attorney for Culver’s election campaign, said after researching the matter, he concluded that the governor’s e-mails dealing with state business between addresses on non-government servers are public record. He made the decision in response to a public-records request by the Associated Press.

Culver spokesman Troy Price said the governor left the decision to Sandler.

“It may actually be in excess of what the law requires them to do,” said Charles Davis, a University of Missouri-Columbia associate journalism professor and executive director of the National Freedom of Information Coalition. “It’s a pleasant surprise, and I think references the fact that the governor understands something very fundamental about access to e-mail: When you’re conducting public business, it should be agnostic as to platform.”

Iowa is one of 21 states that doesn’t specifically address e-mail as a matter of public record, leaving the matter open to interpretation.

Sandler, a former general counsel to the Democratic National Committee, cited Iowa law regarding “data” in his decision to make such e-mails public.

The campaign committee “believes that an e-mail sent from the Governor’s campaign e-mail account to the private e-mail account of a state government official, the essential purpose of which is the conduct of official government business, is subject to the open records law,” Sandler wrote in an e-mail.

In a brief interview, Sandler said the decision was made after examining the law.

“It was a legal understanding on the part of the campaign,” Sandler said. “We certainly consulted with their people. It’s how we understand the law to be.”

His decision was in response to an AP request for copies of e-mails sent by Culver and Lt. Gov. Patty Judge from non-government computers or e-mail addresses that addressed right-to-work and prevailing wage issues. The topics were the subjects of extensive debate in the last legislative session.

Patrice McDermott, director of OpenTheGovernment.org, said many state governments view e-mails as different from other forms of communication and therefore not necessarily subject to the same public-records law.

“It’s not a letter, it’s not a memo,” McDermott said. “This is an important recognition and could be a model for other states. To make this happen usually takes a gavel dropping or the threat thereof. This is promising.”

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said it’s unclear whether this is the first time a governor has granted public access to correspondence between two private, non-government e-mail addresses because other governors may have done so without a public-records request.

In his first two years in office, Culver rarely used his state e-mail account, relying instead on a private server from his election campaign. But several weeks after the AP began questioning Culver aides about the matter in November 2008, the governor changed his policy and now has begun using his state e-mail account for public business. A spokesman said the AP inquiry did not play a part in Culver’s decision.

Culver aides had said the governor and Judge used private e-mail accounts and computers to ensure they didn’t violate state laws banning public officials from using public e-mail accounts for political purposes, but public-records advocates dismissed the claim.

“It should fall pretty clearly under government business,” Davis said. “If not, you’re basically running an honor system. There’s no way to compel a bad actor from not using a private address.”

Governors in other states have come to different conclusions about the rules regarding public and private e-mails.

Investigators looking into the e-mail retention practices of former Missouri Gov. Matt Blunt said in March that his administration wrongly deleted some e-mails and violated Missouri’s public records laws. But the investigators, appointed by the state attorney general’s office, decided not to refer the matter to prosecutors.

During the 2008 presidential campaign, a hacker gained access to Alaska Gov. Sarah Palin’s private Yahoo account, revealing that she had discussions about state politics on the non-government server.

Palin spokesman Bill McAllister said yesterday he couldn’t say whether Palin had stopped using the private account for state business. McAllister said the former GOP vice presidential nominee has conducted conversations with her chief of staff, press office and members of her cabinet on her state e-mail.

“I’m not aware of anyone else in the office that has communication with her on a private account,” McAllister said. “I don’t go around and ask anyone, either.”

In Texas, Gov. Rick Perry’s aides were told to print out and file all business-related e-mails after it was learned that they routinely deleted all e-mail after seven days.

Davis, the Missouri professor, welcomed the Iowa governor’s move but tempered his enthusiasm.

“You do see vestiges of the same old, same old,” Davis said. “They usually look over the legality of everything instead of doing the right thing. That’s going to happen when you have the density of lawyers that state government has. But this is incredibly encouraging.”


Related

States fight to keep officials' e-mail from public inspection (news)
Open-records advocates contend by keeping electronic communications private, states are giving their elected officials an avenue to operate in secret. 03.19.08

Alaska judge tells state to preserve Palin's e-mails (news)
Order applies to government-related messages on governor's private accounts; meanwhile, college student is indicted in hacking incident. 10.13.08

Ex-Mo. governor failed to follow records law, probe finds (news)
Report wraps up nearly 16-month investigation into e-mail-retention practices of former Gov. Matt Blunt's office. 03.04.09

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