Sarah Palin and Her Maverick Emails

E-mails between Alaska Governor and Republican VP-candidate Sarah Palin and her administration are being withheld from the public. This pertains specifically to their use of a Blackberry for sending/receiving messages that do not leave a trace.

Press secretary, Bill McAllister downplayed the matter with "I don't hear any public clamor for access to internal communications of the governor's office," McAllister said. "I know there are some people out there blogging and talking who would like to embarrass the governor by taking an internal communication and spinning it in some fashion."

Ok, that makes sense, particularly in an election year. However, there might be a bigger issue at play here - Alaska law. The Alaska Public Record Act (APRA) is a guarantee that the public have access to public records at all levels of government in the state.

APRA even spells out what constitutes a public record. "Public records" are defined as books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics, that are developed or received by a public agency, or by a private contractor for a public agency, and that are preserved for their informational value or as evidence of the organization or operation of the public agency. The Alaska Public Records Act states that "Unless specifically provided otherwise, the public records of all public agencies are open to inspection by the public under reasonable rules during regular office hours."

Now the Governor's office is claiming that she's done nothing wrong, presumably prepared to cite that in 1986, the Alaska Supreme Court ruled that there is a limited "executive" or "deliberative process" privilege that protects communications between the governor and his or her aides about policy matters such as internal communications about advice, opinions, and recommendations.

But does the 1986 ruling give the Governor the right to utilize a communication system that cannot be captured for the record? What assurance do the people of Alaska have that this system was never used for correspondence that should have been on the public record?

Does the term "deliberate process" suggest that its legal for the governor to set up a separate e-mail system so that whatever is discussed cannot ever be disclosed? Doesn't the term "limited" in the 1986 ruling, prohibit this option? There would be no issue here if the governor's office had captured all of their correspondence and then withheld those messages which it feels are covered under executive privilege.

But she didn't do this. Where she might be at fault here, is the very fact that she's using a separate e-mail system in the first place. When a personal email system is used by a state official, regardless of the nature of content of any given message, it willfully bypasses whatever means had been adopted by the state for preservation of public records (e.g. email archiving) . Whether deliberate or not, this gives the governor and her aides, the ability to delete possible smoking guns since messages transported using this alternate system are usually deleted on a regular basis (e.g. every 30 days), if retained at all. Therefore, nothing that is exchanged in this way, can ever appear on the public record.

Is the Governor in breach of APRA, a law that requires that the public have access to public records? Can she defend the use of a non-official e-mail system (e.g. Yahoo, Blackberry) by claiming "limited executive" or "deliberate process" privilege?

Check out a similar story about the Bush Administration: http://spenceatnorthseas.blogspot.com/2008/01/mr-bush-you-have-some-splainin-to-do.html