As Texan George W. Bush’s eight years as president wound down in 2008, Bush told Politico that there was one thing he was looking forward to in a return to private life:
“Emailing to my buddies. I can remember as governor I stayed in touch with all kinds of people around the country, firing off emails at all times of the day to stay in touch with my pals One of the things I will have ended my public service time with is a group of friends. And I want to stay in touch with them and there’s no better way to communicate with them than through email.”
Bush, the email addicted Texas governor, had gone cold turkey on taking office as president, knowing his email accounts would be public record and thus fodder for reporters and opposition researchers to pore over looking for material that could be used to embarrass him.
Apparently, rather than follow the path of this Texas governor, former Secretary of State Hillary Clinton chose to follow the path of another Texas governor, Rick Perry, and engage in removing emails from public scrutiny. While each used different techniques, Clinton and Perry both found ways to make public disclosure of their emails difficult. When it comes to the public’s right to know what their government officials are doing, Clinton and Perry seem to be birds of a feather.
Clinton, the presumed front-runner for the Democratic presidential nomination, is embroiled in a controversy over keeping a private email account on a server her family owned. Despite federal regulations requiring all of her official emails as secretary of state to be in the possession, The New York Times reported that Clinton maintains control of most of her emails, having only turned over 55,000 relating to the incidents in Benghazi.
Perry’s emails were on a government computer, but his aides made a liberal interpretation of the Texas Records Retention Act to delete most office emails after seven days, claiming to keep only those that were official state business. A Minnesota open records advocate tried to thwart Perry’s scheme by writing a computer program to generate a request for Perry’s emails twice a week, but the purges continued.
When former Attorney General Greg Abbott replaced Perry as governor in January, Abbott’s office created a new email policy to keep all emails for 30 days and only delete material under the guidance of the records retention schedule.
While Perry’s email controversy is different from Clinton’s, the former secretary of state has a lot in common with officials in several Texas cities and counties. If the Texas controversies are any guide, then Clinton is simply wrong and should turn all her emails as secretary of state over to the department.
The battle over public officials avoiding disclosure through private email accounts has been fought more than one here. Texas attorney generals — including now-U.S. Sen. John Cornyn and Abbott — have ruled that public business conducted through a personal email account is subject to disclosure under the Texas open records law. Federal law is different from state law, but the principle of open government is the same.
- The Arlington City Council in 2001 received an open records request for all council member emails. The city complied with the request on city computers but balked at giving out information from the members’ private computers. Cornyn ruled in Open Records Decision 2001-1790 that the city had to obtain the private emails and give them to the requestor. Since that time, there have been multiple controversies over public officials use of private emails.
- The Austin Bulldog, a local investigative newsletter, claimed in 2011 that Austin City Council members used private email accounts to deliberate about a $250 million city project, using the emails to avoid open meeting act requirements.
- Bexar County Commissioner Tommy Adkisson sued in 2012 in an attempt to block release of emails from a personal account to The San Antonio Express-News, which was trying to find out how much an anti-toll road crusader was doing in his administration. A state district judge ruled against Adkisson.
- The Victoria Advocate has been fighting with several local officials over the release of public information kept on private email accounts.
- The City of El Paso has an ongoing fight with attorney Stephanie Townsend Allala over releasing personal email account materials from city advisers to city officials over the construction of a city ballpark. Abbott ordered the records released, but the city has gone to court to block the release. The city claims it cannot release records it does not possess.
“The government’s business is the people’s business,” Texas Freedom of Information Foundation Executive Director Kelley Shannon told me. “Some officials may be trying to avoid open records by using personal accounts.”
The Legislature in 2013 passed a state law codifying the Cornyn and Abbott opinions that public business conducted on private accounts is subject to open record release. But with local governments like El Paso refusing to comply, claiming they are not the custodian of records, state Rep. Todd Hunter, R-Corpus Christi, has introduced a bill to require public officials to turn such records over to the government body for release.
“They’re not personal. They’re official business,” Hunter told me. Hunter said no one is trying to force officials to release truly private communications, but he said there are so many personal devices available to officials now, laptops, tablets, wireless phones, that it only makes sense to have those devices subject to public scrutiny. “We’re in the modern age now.”
Over the past 24 hours, I’ve seen a lot of Democrats engaging in the Washington game of ‘This is no big deal because it is OK when our person does it’ to provide forgiveness to Clinton. Or they’ve hidden behind the fact that former Secretary of State Colin Powell under Bush also maintained a personal email account – as if two wrongs make a right. If her supporters really want good government ethics, they should be expressing disappointment and urge her to turn all the records over to the Department of State, where public release would be determined by following the federal Freedom of Information Act.
Clinton had to know the problems associated with her personal email accounts right from the time she took office. There were national stories about President Obama keeping his Blackberry and about how neither Bush nor former President Bill Clinton used email while in office. The Washington Post is reporting that White House spokesman Josh Earnest said Clinton did not follow Obama’s policies on officials using email.
“Very specific guidance has been given to agencies all across the government, which is specifically that employees in the Obama administration should use their official e-mail accounts when they’re conducting official government business,” Earnest said. “However, when there are situations where personal e-mail accounts are used, it is important for those records to be preserved, consistent with the Federal Records Act.”
Simply put, Clinton is learning the lesson of Texas politicians – that private email accounts do not put a public official above public scrutiny. Clinton probably should have adopted George W. Bush personal policy as he left the Texas behind for the District of Columbia. Bush surrendered his email handle [email protected] in January 2001 and sent out his final email for eight years.
“Since I do not want my private conversations looked at by those out to embarrass, the only course of action is not to correspond in cyberspace. This saddens me. I have enjoyed conversing with each of you.”