Private Email and Public Business: Anything Goes

January 19, 2010

Investigative Reports

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The NerveStimulus funding, budget vetoes and spending transparency are among an array of state business South Carolina public officials discussed through private email correspondence during the past year.

But despite potential problems involved when government isn’t conducted in the open, South Carolina has no prohibition against using private emails for public business. In addition, many state agencies don’t even have email retention policies in place to establish preservation standards for email and instant messages sent or received on state servers.

That has not only blurred the line between what is public communication and what is private, but also could result in the loss of important correspondence inadvertently deleted from state servers.

The use of private electronic correspondence for state business varied considerably through the first six months of 2009.

Of the nearly one dozen officials the Policy Council sent S.C. Freedom of Information Act requests to seeking examples of public business conducted on private emails, Gov. Mark Sanford’s office turned over more than 140 emails while others, such as Senate President Pro Tempore Glenn McConnell and House Speaker Bobby Harrell, said they don’t use personal email for state business.

And a request to Commerce Secretary Joe Taylor produced no material, even though Sanford’s office turned over several private emails regarding public matters sent back and forth between the commerce secretary and the governor. Those included:

  • A May email exchange between Taylor and Sanford regarding the “RR” veto, believed to refer to a proviso that would have required all railroad tracks, structures and equipment on the old Navy base site in North Charleston to be transferred to the Division of Public Railways within Commerce.
  • Emails in both April and May regarding the state unemployment rate in which Taylor received the emails via his state account, forwarded them to his personal account, then sent them to Sanford’s personal account.
  • A June press release Taylor received from a Department of Commerce employee regarding South Carolina receiving an award from an economic development magazine. Taylor forwarded the email to his private account, then forwarded it to Sanford’s private account. Sanford responded and said he would discuss the release with Taylor.

“We were asked to turn over what was in our possession and obviously you can’t turn over what you don’t have any more,” Commerce spokeswoman Kara Borie said.In all, the Policy Council sent Freedom of Information Act requests to 10 officials to determine how widespread the practice is: Sanford, Taylor, McConnell, Harrell, Lt. Gov. Andre Bauer, Senate Finance Chairman Hugh Leatherman, House Ways and Means Chairman Dan Cooper, Treasurer Converse Chellis, Comptroller General Richard Eckstrom and Budget and Control Board Executive Director Frank Fusco.

The Policy Council tailored its selection to high-ranking state constitutional officers and officials who possess a significant degree of decision-making power on budget and economic development issues. It asked for all state-related communication sent or received via private email accounts on state-owned or leased property or equipment during the first six months of this year.

The request sought emails between the elected or appointed official in question or their staffs, and other elected or appointed officials, lobbyists and employees or representatives of public or private entities that receive public money. The request also asked for emails pertaining to political activity.

Under the state’s Freedom of Information Act, public bodies are required to turn over all public records in their possession. The law says public records include documentary materials “regardless of physical form or characteristics.”

The practice of using private email for public business poses several risks, including:

  • It distorts the idea of what is public and what is private when all state business is public and should be conducted in the open;
  • It opens the door for hackers to break into the accounts of state officials, possibly accessing sensitive information. That’s what happened to Alaska Gov. Sarah Palin in September of 2008. While she was running for vice president a hacker broke into her personal Yahoo! account, which contained emails involving state business.

Indeed, other states are beginning to realize that the easiest way to avoid difficulties is to require all public business to go through state accounts.In August, for example, Alaska announced an email retention policy that informed all executive branch employees that state business must be conducted through the state email system whenever feasible. In instances where private email accounts are used, employees must send copies of emails to their state accounts.

South Carolina has no comprehensive plan regarding the retention of email, either those sent through state accounts or private emails involving state business, according to the Department of Archives and History, the agency in charge of record preservation.

Email retention plans are left up to individual agencies, according to Bill Henry, an electronic records consultant with Archives and History.

Some state agencies – including the Governor’s Office – don’t have a formal email retention policy in place.

Officials with Archives and History believe all emails from significant agencies pertaining to state business should be preserved, just as any other document would be.

Henry added that his agency’s position is that “public business that resides in a private email account or is conducted through private email would be a public record.”

The Policy Council’s FOIA request seeking private emails related to public business netted a variety of responses:

Gov. Mark Sanford

Among issues discussed in private electronic mail by Sanford or his staff:

 

  • Sanford seeking advice from a former aide on whether to veto individual items in the budget, or issue an overall budget veto;
  • Confirmation of interest by Sanford about a meeting with him and/or his staff and Dana Beach of the Coastal Conservation League and retired Port of New Orleans CEO Ron Brinson regarding port privatization;
  • Correspondence between Sanford and a Lowcountry developer, with the developer asking for Sanford’s help resolving an issue involving both the Attorney General’s Office and DHEC’s Bureau of Ocean and Coastal Resource Management.

“This Administration has a remarkably clear record with regard to this larger notion of transparency,” spokesman Ben Fox said in a statement. “It’s also important that we use common sense to avoid creating problems that don’t exist; for instance, the use of a personal email account over a state holiday is what it is: The office was closed, and an employee used a home email address at home.”Lt. Gov. Andre Bauer

An Aug. 21 letter to the Policy Council from Bauer’s office states, “We have conducted a preliminary review and have determined there are communications in our possession that are responsive to your request and we intend to provide them.” Bauer’s office is seeking $61 an hour to compile the emails, plus 3 cents for each page copied. The Policy Council believes the charge is unreasonable and improper.

Commerce Secretary Joe Taylor

Taylor’s office responded to the FOIA but said it had no emails that fit the Policy Council’s request.

Sens. Glenn McConnell/Hugh Leatherman

Clerk of the Senate Jeffrey Gossett responded on behalf of McConnell, Leatherman and their staffs that “the Senate has no documents that satisfy” the Policy Council’s FOIA request. Gossett added that not only is he not aware of any senators or staff who use their private email accounts for state business, but that the Senate puts “a lot of time and resources into assuring that senators and staff can access their Senate email account remotely.”

Reps. Bobby Harrell/Dan Cooper

Clerk of the House Charles Reid, responding on behalf of Harrell and Cooper, said his office did not have any such records.

Comptroller General Richard Eckstrom

Eckstrom’s office provided a significant number of private emails concerning state and political matters, but nearly all were received, rather than sent. Of those sent, staffer R.J. Shealy produced six emails involving state business sent or received through personal accounts, including:

 

  • A note to the mayor of Beaufort asking if he’d given “any more thought” to putting the comptroller’s spending transparency program on the city council’s agenda;
  • A note to an official with the National Governors Association with a description of Eckstrom’s duties as chairman of the S.C. Stimulus Oversight, Accountability and Coordination Task Force; and
  • Responding to an information request from a Columbia television reporter.

“I use my personal account for stuff done from home,” Shealy said. “Personal email is always easier to use at home than Outlook, which can be a real bear away from the office.”Treasurer Converse Chellis

The only emails provided by Chellis’ office were a small number from a staffer that were dated mid- to late-July, outside the time frame specified by the Policy Council’s request.

Budget and Control Board Executive Director Frank Fusco

The Budget and Control board submitted one email, concerning an intern’s efforts to launch the South Carolina Confederate Relic Room and Military Museum’s Facebook page. The Budget and Control Board oversees the Relic Room.

The Policy Council called each official’s office prior to sending the FOIA request in an attempt to procure the information without a formal request. Only Eckstrom’s office provided the requested material without having to be served with an open-records request.

Of the other nine agencies, only Bauer’s office sought to charge the Policy Council for compiling the information. The $61-an-hour figure is based on the cost of employee salary and fringe benefits, according to Bauer’s office.

The Policy Council responded that because the Lt. Governor’s Office has a public information officer, this request should fall under that individual’s duties and require no additional costs to the agency.

Chief of Staff Helen Ann Thrower replied that her office is not aware of any provision or interpretation of the Freedom of Information Act that supports the assertion that a public body can’t charge for the hourly rate of its regular employees.

While there have been no formal court rulings in South Carolina on public bodies attempting to exact money to provide public documents, courts in other states have determined that it is not appropriate for government entities to charge for time spent by a public employee searching for documents when part of that employee’s job duties include responding to records requests.

Reach Dietrich at (803) 779-5022, ext. 110, or kevin@scpolicycouncil.com.