Even Before VP Nomination, Palin's E-mail Use Questioned

by Lisa Demer

ANCHORAGE, Alaska - Moments after Gov. Sarah Palin's first speech as Republican John McCain's running mate, she sat with her kids backstage, thumbing one of the two BlackBerrys that are always with her. You can see them in photographs from that day on the campaign blog of one of McCain's daughters.

The tech-savvy governor has one of the devices (which allow users to read and send e-mails) for state business and another for personal matters, but those worlds intertwine.

Palin routinely uses a private Yahoo e-mail account to conduct state business. Others in the governor's office sometimes use personal e-mail accounts, too.

The practice raises questions about backdoor secrecy in an administration that vowed during the 2006 campaign to be "open and transparent."

Even before the McCain campaign plucked Palin from Alaska, a controversy was brewing over e-mails in the governor's office. Was the administration trying to get around the public records law through broad exemptions or private e-mail accounts?

Activists, still fighting to obtain hundreds of e-mails that were withheld from public records requests earlier this year, say that's what it looks like.

The governor's Yahoo account is "the most nonsensical, inane thing I've ever heard of," said Andree McLeod, who is appealing the administration's decision to withhold e-mails.

"The governor sets the tone and the tone that has been set by this governor is beyond the pale," McLeod said. "Common sense tells you to use an official state e-mail account for official state business."

Palin, busy with the vice presidential campaign, did not respond to requests for comment or answer an e-mail sent to her Yahoo account. The Washington Post included Palin's Yahoo e-mail address in a recent story, so she may not be using that one anymore.

Her staff says the governor is open - within reason and within the law.

She is allowed to keep e-mails confidential if they fall into certain categories, such as "deliberative process," said her press secretary, Bill McAllister.

And, he said later, she appropriately uses her personal Yahoo account for political activities.

"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."

State lawyers say that the governor's e-mails about public business should be treated like any other public record, even if she's sent them through a private account such as Yahoo.

Some of her aides also routinely use Yahoo, but even messages sent from one private account to another should be public, if they concern public business, said Dave Jones, an assistant attorney general.

"The difficulty is finding out they exist," Jones said.

It's a new twist on an old problem: How to keep an eye on the government. And Palin's expected absences from Alaska for the presidential campaign add urgency to the debate. Is she going to be running the state long-distance on her BlackBerry?

Some experts on open government say officials around the country escape scrutiny by either quickly deleting e-mails or using private accounts, as Palin has done.

"Where you've got a governor apparently using a Yahoo account for state business, that's kind of a complete inversion of what ought to be happening in terms of public records," said Charles Davis, executive director of the National Freedom of Information Coalition and a Missouri journalism associate professor.

"E-mail that's public business ought to be done on public accounts that can become public record," he said.

The Bush administration has drawn heat over revelations that more than 80 White House aides, including senior Bush adviser Karl Rove, used private GOP e-mail servers for government business. The controversy surfaced during congressional investigations into White House contacts with convicted lobbyist Jack Abramoff and into the firings of U.S. attorneys.

The Bush administration couldn't provide uncounted numbers of e-mails needed for evidence because they weren't on a government server, according to a 2007 report by the House Committee on Oversight and Government Reform.

In Texas, Gov. Rick Perry's office routinely deletes all e-mail after seven days, Davis said. After controversy about the practice, aides were told to print out and file business-related e-mails, but open government advocates questioned whether that would always happen, according to the Dallas Morning News.

In Missouri, Gov. Matt Blunt has been embroiled in litigation over access to e-mails in his office.

Just how much of the state's business does Palin conduct through her BlackBerrys? Her chief of staff didn't respond to that question. But she often is glued to her devices.

Her Yahoo e-mails got the attention of political activists Zane Henning, a Wasilla resident and North Slope worker, and McLeod, a former legislative staffer and Republican who has run for state House and mayor.

In response to similar but separate public records requests, McLeod and Henning this summer received four banker boxes of e-mail and telephone records for two Palin aides: Frank Bailey and Ivy Frye. Henning was operating on behalf of the Valley group Last Frontier Foundation, which lists property rights and public records as among its core issues on its Web site.

"I think that it's total hypocrisy from what she stood for at the beginning of her campaign," Henning said. "Because she campaigned on open government, and she knew that using a private e-mail account would take it and basically hide stuff that people couldn't see."

As far as McLeod can tell, all but one of the e-mails to the governor used her private e-mail address. The one time an aide e-mailed the governor's state account, he was reminded not to.

"Frank, This is not the Governor's personal e-mail account," an assistant to Palin wrote to Bailey in February.

"Whoops~!" Bailey responded in an e-mail.

The state withheld about 1,100 e-mails, citing exemptions for deliberative process, executive privilege, attorney/client privilege, privacy, and personnel. If McLeod's appeal fails, Henning said he's going to take the matter to court.

In one e-mail string among the volumes turned over, Frye wanted to know if she would be audited or "dinged in any way" if her personal and state e-mails all routed to the same device.

"I would gladly buy my own blackberry if it and its contents were truely mine. Any thoughts here?" Frye wrote on March 17 at 10:56 a.m. Administrators were waiting for guidance on confidentiality issues from the state Department of Law, Kim Garnero, state Division of Finance director, wrote back at 11:06 a.m. But using a personal device made an audit much less likely, she wrote.

Frye later forwarded strings about the personal e-mail issue to Palin and her husband, Todd.

In April, Frye asked the state's information technology office for help in getting her BlackBerry to default to her Yahoo account. Frye did not respond to requests for comment.

In an interview with the Daily News, Garnero said concerns about an audit were related to IRS tax implications for employees with state cell phones or BlackBerrys that are used at times for personal business.

The state would like employees to buy their own. The state then will pay $75 a month toward a BlackBerry or similar device or $40 toward a cell phone, if needed for the job.

Employees aren't trying to get around public records law, but just don't want to carry two cell phones or BlackBerrys, Annette Kreitzer, commissioner of the state Department of Administration, wrote in an e-mail to the Daily News.

"They want to know what the law is, where the boundaries are, so they can use as few communications devices as possible and still be able to do their jobs and communicate with their families when they are going to be late for dinner," Kreitzer wrote.

Last month, the state Attorney General's Office issued a 13-page opinion about how much personal use of state cell phones, laptops and other devices is appropriate. The bottom line: no more than 30 minutes or 5 percent of the monthly allowance should go for personal use, and employees shouldn't use state equipment at all for political purposes.

The opinion, by assistant Attorney General Julia Bockmon, also addressed personal e-mail and cell phone accounts. Personal communications are not public records, but state business records on personal devices are, she wrote. Personal call records and e-mails could be reviewed by a state official or court to locate any that concern public business, she wrote.

No one in the Palin administration could say if the governor is saving her Yahoo e-mails. If she's emptying her e-mail trash, they are zapped from Yahoo's storage system within days or at the longest, months, according to the company.

"If you are asking do we have those e-mails, then the answer is no," said Anand Dubey, director of the state's Enterprise Technology Services. "We don't control Yahoo or Gmail or Hotmail or anything like that."

Dean Dawson, state records manager, is working on an e-mail archive system for state employees, who tend to want to hang onto e-mail forever, he said. E-mail records should be kept as long as paper records of the same type - for instance, three years for general correspondence, he said. Top executives such as commissioners and the governor often must keep records longer, under state schedules.

So what about archiving Yahoo e-mails that concern public business?

"That's kind of the gray fuzzy area right now," Dawson said. "I think they would be transferring that data to another medium and then retaining it as a public record."

They could download it onto a state computer, for instance.

"Because if that couldn't be done, then they should not be conducting state business on personal devices or even on state portable devices," Dawson said.

McAllister, the governor's press secretary, says not all the governor's e-mails should become public.

"Open and transparent does not mean that you lose all common sense and conduct everything out in the open," he said. "I mean, obviously, you have to have people be able to think out loud, have discussions and debates, you know, and resolve things.

"And I don't think the public expects us to inundate them, flood them, with all kinds of communications that they don't need, when in fact, the final decisions will be public, will be documented, will be substantiated, and they always have been."