Politicians Increase Conduct State Business on Private E-Mail Accounts

By Jo Mannies, St. Louis Post-Dispatch

Nov. 13–Public officials can end up in trouble if they’re caught using government equipment to conduct personal or political business. Some, in fact, have landed in jail for the practice.

But in an age of e-mails and hand-held computer devices, the reverse practice is taking hold: conducting government business on personal or political accounts and computers.

Gov. Matt Blunt admits using private and political e-mail accounts for official communications. So do some members of the Missouri Legislature.

“It’s growing exponentially,” said Charles Davis, executive director of the National Freedom of Information Coalition, a nonprofit group based in Columbia, Mo.

Although the federal government frowns on the practice, it is legal in Missouri and many other states. Open-records experts, however, say public officials could be playing loose with the rules.

They fear that government e-mails sent on private accounts may be beyond the reach of the public, despite laws that spell out what records are open and how long they should be retained.

The issue is open government — making sure citizens know what their elected officials are doing. But technology is testing well-worn rules about what counts as a public record and how documents should be saved.

“There are public officials in Missouri and elsewhere who use private e-mail accounts to avoid public-records and open-meetings laws,” Davis asserted. “They think, ‘It’s on my EarthLink account, not my mo.gov account, so it’s OK.’”

Such e-mails, if they’re not retained in government archives, represent “lost history,” Davis said.

State Senate Majority Leader Charlie Shields, R-St. Joseph, acknowledges that he and most of his colleagues in the state Capitol use their personal e-mail accounts far more than their state government accounts.

The chief reason: They don’t want to run afoul of state law by doing personal or political business on government equipment.

“It was considered improper to do private business on a state account, but it’s fine to do government business on a private account,” Shields said.

Missouri law dictates that many government communications — even electronic messages — need to be saved for up to three years. And messages sent on private accounts are considered public, if they deal with government business, experts say.

Shields acknowledged that some e-mails sent from lawmakers’ private accounts, such as correspondence with state agencies, should be treated as public documents. But it’s up to those departments to preserve the electronic communications, he argued, not the legislators.

In Illinois, the state’s Freedom of Information Act applies to e-mail the same way it does to any other form of record: If it’s public information, it must be made available for public inspection.

That creates complications when it comes to using private e-mail accounts for sending or receiving public records, said Terry Mutchler, public access counselor for the Illinois attorney general’s office.

“There are (officials) who do use their AOL or Hotmail accounts for public business,” Mutchler said. “But the public is left to rely on the good graces of the public official to be honest” about what’s in the private e-mail account.

The reality, Mutchler said, is “if you want to use your private e-mail account to hide public information, you’ll probably be able to do that.”

Officials in other states, and in Washington, have wrestled with the same issues. On Monday, a federal judge ordered the White House to preserve copies of all its e-mails, a move that Bush administration lawyers opposed.

U.S. District Judge Henry Kennedy acted after two lawsuits were filed to determine whether the White House has destroyed e-mails in violation of federal law.

The Bush administration also has drawn criticism after congressional investigators determined that dozens of White House aides improperly conducted official business on their e-mail accounts with the Republican National Committee.

GOVERNOR’S E-MAILS

Blunt’s administration has come under fire after acknowledging that it often deletes e-mails on government accounts. His staff initially argued that e-mails were not necessarily public records, but the governor later backed off that stance.

In addition to their government accounts, Blunt and several top aides have accounts on his campaign server, MattBlunt.com.

They acknowledge that they use the campaign accounts or other private e-mail servers to conduct state business. Still, “we don’t routinely use” those private accounts, said Blunt spokeswoman Jessica Robinson.

Blunt, when asked about the practice recently, replied: “Lots of people have more than one e-mail address. I’m among them.”

The question is whether the public can access those messages.

Richard AuBuchon, chief counsel for the state Office of Administration, says his office — which oversees some state computer servers — has no access to private e-mail accounts.

The state network would have e-mails from those private accounts only if such e-mails are sent or forwarded to the state’s system, AuBuchon said.

In the governor’s office, e-mails on private accounts that are deemed public are printed and stored, Robinson said. Office staffers determine what’s public and what’s not, she said.

Even so, the governor’s staff produced no private-account e-mails to the Post-Dispatch after the newspaper’s Sept. 27 open-records request of all e-mails sent or received by Blunt, and his chief of staff Ed Martin, since Aug. 1. The office sent only messages from their government accounts.

Robinson said that’s because none of the private-account e-mails during the targeted period involved state business.

The Post-Dispatch sent an identical request to Blunt’s Democratic rival in the 2008 race for governor, Missouri Attorney General Jay Nixon. But Nixon’s staff says neither he nor his aides conduct state business on campaign or private accounts.

Instead, Nixon carries two hand-held communication devices, known as BlackBerrys. One belongs to the state and the other is from his campaign, said spokesman Oren Shur.

A survey of the four other statewide officeholders found that all avoid using private e-mail accounts for state business, or took steps to make sure that such communications were copied into the state computer system.

A spokesman for Lt. Gov. Peter Kinder said everyone in his office uses private BlackBerrys to conduct state business. But a system was set up so that copies of the BlackBerry messages are forwarded to state e-mail accounts, said spokesman Barry Bennett.

State Treasurer Sarah Steelman takes similar precautions with her personal BlackBerry, said Deputy Treasurer Doug Gaston. He and other senior aides have state-provided BlackBerrys and make sure their communications are captured on the state computer system, Gaston said.

Secretary of State Robin Carnahan and state Auditor Susan Montee say they conduct state business only on state e-mail accounts and computer equipment.

In Illinois, Gov. Rod Blagojevich “doesn’t rely on private e-mail for state business,” his office said in an e-mailed statement (sent from a state government account).

AREA OFFICIALS

Top local officials also avoid the mixing of public and private e-mails.

St. Louis County Executive Charlie A. Dooley has a campaign e-mail server, but he never uses it for county business, said Darin Cline, his director of intergovernmental affairs.

St. Louis Mayor Francis Slay and chief of staff Jeff Rainford say they follow the same practice, conducting city business only on city e-mail accounts.

St. Charles County Executive Steve Ehlmann relies on a time-tested method: put everything on paper.

Ehlmann, a former judge, said he discussed the subject with County Counselor Joann Leykam shortly after he took office in January and, he said, they concluded that “the safest thing for me is not to put anything on e-mail” — whether on county or private accounts.

Ehlmann was worried about whether e-mails are covered by open-records requests.

“Until a judge clarifies this, I’m going to be very careful,” he said.

Still, Ehlmann acknowledges that he doesn’t avoid electronic communication entirely. He has a private BlackBerry that he occasionally uses to communicate with his staff.

But those messages, he said, are just reminders of meetings.

Mark Schlinkmann, Kevin McDermott, Jake Wagman and Matt Franck of the Post-Dispatch contributed to this report.

jmannies@post-dispatch.com — 314-340-8334

—–

To see more of the St. Louis Post-Dispatch, or to subscribe to the newspaper, go to http://www.stltoday.com.

Copyright (c) 2007, St. Louis Post-Dispatch

Distributed by McClatchy-Tribune Information Services.

For reprints, email tmsreprints@permissionsgroup.com, call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.

NASDAQ-NMS:ELNK, NYSE:TWX,