Public officials, private emails: Transparency dilemma roils states

SALEM, Ore. – The types of transparency questions surrounding Hillary Rodham Clinton’s use of personal email to conduct business while secretary of state have led in recent years to access fights in state capitals throughout the country.

Governors and other elected officials routinely use private emails, laptops and cellphones for government business, a popular strategy that sometimes helps them avoid public scrutiny of their actions.

Open-records fights over private emails have had varying results.

“It’s an issue that’s becoming increasingly prevalent as we all have more and more accounts on social media and email,” said Adam Marshall, a legal fellow on open government for the Reporters Committee for Freedom of the Press. “I think it’s a real and serious problem at all levels of government across the nation.”

Most state transparency laws were written before electronic communications were common, and they vary significantly in how they handle public business conducted through private accounts and devices.

Even in states requiring disclosure, it’s tough to know whether officials are disclosing all relevant records when they are the only ones to have access.

The most recent statehouse skirmish over private emails is unfolding in Oregon, where former Gov. John Kitzhaber and his fiancee, Cylvia Hayes, are fighting on multiple fronts to keep their emails out of the public eye and away from federal investigators.

Emails from several personal accounts Kitzhaber used were archived on state servers, a move he says was inadvertent. Shortly before he resigned, a staffer tried to have them erased, but technicians refused and they were later leaked to Willamette Week, a Portland alternative newspaper.

Government transparency advocates say the public has a right to know what their elected officials are doing with their tax dollars.

“If they can hide their communications and obscure what’s going on in the discharge of their public offices by using personal email accounts, they are denying the public a fundamental right of transparency to understand what they’re doing” said James Chadwick, a media and intellectual property lawyer in Palo Alto, California.

The media and members of the public have routinely fought for access in the states as the use of private accounts and devices has proliferated among elected officials and high-level government bureaucrats.

In California, the state Supreme Court is reviewing a lower court’s ruling that said public officials’ communications on private accounts are not subject to the state’s public records law.

The Denver Post went to court in 2008 seeking access to personal cellphone bills for then-Colorado Gov. Bill Ritter, a Democrat. The Supreme Court eventually ruled that the records are not public, prompting a dissenting opinion from two justices who said the court gave public officials a path to conceal public business “for the price of a monthly cellphone plan.”

In New Mexico, Republican Gov. Susana Martinez has been sued by news organizations seeking access to her work and travel schedules, cellphone calls and the expenses of her security detail.

A state district judge ruled last month that Martinez’s personal and political calendars are not public records because the documents were maintained by Martinez on her personal devices.