WASHINGTON E-mail has become the communications tool of choice in the past decade, but imbroglios involving the governors of Missouri and Texas show that the rules of paperless messaging are still evolving and can create problems for state government.
A newspaper columnist's request in August for e-mail records triggered a political maelstrom in Missouri, and an investigation by the attorney general. In the aftermath, Republican Gov. Matt Blunt has fired one member of his legal team and replaced his chief of staff and top lawyer.
Meantime, Texas Gov. Rick Perry, a Republican, is under fire from good government groups for his policy of deleting e-mail files after seven days. Perry's woes are being exacerbated by an activist's incessant demands for e-mail records.
On one level, rules about how to preserve e-mail for public records have not caught up with the technology. Sunshine laws in 18 states do not refer to e-mail at all, according to the Reporters Committee for Freedom of the Press, an open government advocacy group. Even in states such as Missouri and Texas where laws or regulations explicitly require preserving some official e-mail, decisions on which messages to keep or discard vary by department and are sometimes left to individual employees.
At the same time, the technology to efficiently sort and archive relevant e-mail is not widely available or much used, said Steven Clift, a Minnesota expert on e-democracy. "It might be easier to keep everything," he said.
The proliferation of electronic messaging has provided a widening window into government operations. In some cases, personal e-mails sent via state-owned computers and other devices have revealed official misbehavior. A top Minnesota Department of Transportation staffer was recently fired after her e-mail and cell phone records tipped off investigators to $26,000 in unauthorized travel and other expenses.
In 2003, then-Gov. Bob Wise of West Virginia, a Democrat, opted not to seek re-election after his romantic e-mails to a state employee became public.
In other cases, requests for e-mail, rather than the content, have become the issue. Democratic state officials in Ohio were deluged by such requests by a college student this summer. The student submitted the requests while serving as an intern for the state Republican Party, which explained the action as a way to test Democratic Gov. Ted Strickland's pledge to run an open government.
In the Missouri case, Springfield News-Leader columnist Tony Messenger asked Gov. Blunt's then-chief of staff, Ed Martin, for a week's worth of e-mails in an effort to see if the administration was coordinating a statewide pro-life protest targeting Planned Parenthood. Messenger was told that the governor's staff regularly deletes e-mails after a week a possible violation of the state's open records laws.
Shortly thereafter, Scott Eckersley, the governor's deputy legal advisor, said he had been fired for advising the administration to keep all e-mails. Blunt contends Eckersley never gave such advice and was fired for other reasons. Blunt's chief of staff and lead attorney also departed about the same time, but the governor denied the e-mail controversy was related to the staff changes.
Attorney General Jay Nixon, a Democrat, who is seeking to defeat Blunt in next year's election, has appointed a team to investigate whether the governor has violated any of the state's record retention laws.
Under Missouri's open records rules, only personal e-mail and some routine daily messages regarding employee meetings or activities are exempt from preservation. Blunt oversaw the creation of that policy during his tenure as secretary of state.
E-mail also falls under Texas' sunshine laws, but individual agencies are responsible for deciding how that policy is fulfilled. In some cases, individual staffers are responsible for deciding what should be saved and what can be discarded. "It's not an easy thing to manage," said Tim Nolan, a program specialist with the state archives.
John Washburn, an activist who doesn't live in Texas, has been sending Texas Gov. Perry's office automatic, twice-weekly requests for e-mail. He says he wants the electronic records because the governor's policy leaves too much room for abuse by individual staff members
Perry's office has sent Washburn a bill for more than $500 to cover what it says are the costs of searching for documents from his very first records request.
Clift said the easiest solutions are for state governments to keep everything and for elected officials to be more careful if they want to have private discussions. "If people in government want to communicate confidentially, they should to it in person. Don't put everything in writing," Clift said.