[Vision2020] Deleted E-mails Cause Public Records Issue

[Tom Hansen]

Courtesy of today's (July 1, 2009) Moscow-Pullman Daily News.

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Deleted e-mails cause public records issue
Daily News plans to petition court to recover electronic correspondence
between Steed, legislator
By Mark Williams, Daily News staff writer

Idaho law does not restrict government officials from deleting e-mails
they received concerning public business, even though those e-mails can be
considered public record.

The issue came to light when the Daily News made a public records request
to state Rep. John "Bert" Stevenson, R-Rupert, concerning e-mail
correspondence between himself and Moscow City Councilman Walter Steed.

The request sought e-mails regarding two proposed bills that would affect
Moscow's ability to sell water across the state line to the Hawkins
Companies' planned retail development in Whitman County.

Both bills, sponsored by Rep. Gary Schroeder, R-Moscow, died in the House
Resources and Conservation Committee after passing overwhelmingly in the
Senate, and never reached the House floor.

Stevenson serves as chairman of the House Resources and Conservation
Committee. His written reply to the public records request stated he had
deleted the messages sent by Steed.

He later said he had not read the majority of Steed's e-mails.

Stevenson's written response was reviewed by the state attorney general's
office, which indicated the Daily News would need to petition a court to
recover them. Idaho law states a petition must be filed in the district
court of the county where the records or some part of them are located.

Though deleted e-mails can be recovered, the process is time-consuming and
potentially costly, meaning hordes of potential public records in
electronic form may be disappearing before the public can access them.

Daily News Editor and Publisher Nathan Alford said the company plans to
take the necessary steps to recover the records.

"Defending the public's right to know is part of our mission and
responsibility, and we're willing to do what it takes to protect a
well-established right," he said. "Transparency in government is
essential."

E-mails and other records must be retained after a public records request
has been made, but Idaho Deputy Attorney General Bill von Tagen said no
mechanism exists to compel government officials, including legislators, to
keep their e-mails before a request is made.

"We don't really have a records retention policy," he said. "There may be
other reasons that require them to be saved, but when you're in a purely
political realm I don't believe that is the case."

Senate Minority Leader Kate Kelly, D-Boise, sees the loophole as a
problem, but said there has been no pressure from the public or within the
Legislature to remedy the law.

"The Legislature certainly doesn't have (a retention policy) for hard copy
or e-mail," she said.

Kelly is well-versed in public records issues. She and Senate Majority
Leader Bart Davis, R-Idaho Falls, co-sponsored a bill last session that
would have required elected officials and candidates to disclose their
personal finances, but the proposal was killed before it reached
committee.

Kelly previously worked in the attorney general's office and advised
agencies on open records laws.

She said she is not surprised that Idaho hasn't addressed the law.

"I like to describe Idaho as an analog bubble in the middle of a digital
world," she said. "In terms of what we're doing from a statutory
standpoint, my guess is that we're probably behind" other states.

House Majority Leader Mike Moyle, R-Star, said he doesn't think the
situation is a problem.

He said if legislators or interest groups were to discuss something
potentially damaging, they wouldn't do it via e-mail, where they know it
can eventually be retrieved.

"Common sense says you wouldn't think somebody would send something along
those lines knowing that it would be a public record," he said.
"Everything we do is out there to be found. I mean, you can say it's gone,
but it's not really gone."

Moyle said most legislators delete their e-mails just like everyone else.

"Most guys delete them right away," he said. "We caution our legislators
to be careful with what they do or say. We do our best to keep things
above board. We want to keep things in the light."

Mark Williams can be reached at (208) 882-5561, ext. 301, or by e-mail at:

mwilliams at dnews.com

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Stay tuned, Moscow.

Tom Hansen
Moscow, Idaho

"The Pessimist complains about the wind, the Optimist expects it to change
and the Realist adjusts his sails."

- Unknown