Use of personal email accounts for government business

see our story update 3-29-11 at bottom of this post

We reprint the story below from the Washinton Post to again put all public officials on notice that using a "personal email" account for official government communications subjects the entire contents of the email account to public records act requests. We went through this before with the Karl Rove camp using @RNC (republican national committee) email addresses for official government email as a way of subverting public records requests. We have brought this issue to the attention to the Lakewood City Council numerous times yet all five still use their personal email accounts and not accounts @lakewoodcity.org. So we wait until this blows up in their face much like it did for poor little Sarah Palin, who only a few months ago was herself a lowly city council member. We also brought up to to the city council a number of times that they did not post ANY email addresses on the city website for citizens to contact them directly. We feel the reason for this is much like Bush, Cheney and McCain who don't use email simply because they want no paper trial of any of their activities. The fewer Lakewood residents that email the council about issues the better. That way there is no trace of the issue, the date, or the response or lack thereof. Then like most politicians, when the the problem blows up they can say they never knew about it (and you have no way of proving it)

All the Palin email was posted at Wikileaks.org and that site was overloaded all evening. Apparently the news media is pouring over it or the secret service is trying to take it down. Gawker had some posted.

Once again Lakewood City Council, you are on notice that this practice is wrong and needs to stop. Oh and for those that dont have the councils "non official" (and only) email addresses here they are:

Todd Rogers -- tsrr@msn.com
Joe Esquivel -- bayoujo@aol.com
Larry Van Nostran -- oldeacon@aol.com
Steve Croft -- stacro@aol.com
Diane DuBois -- diane4citycncil@aol.com

Hackers Access Palin's Personal E-Mail, Post Some Online

By Michael D. Shear and Karl Vick
Washington Post Staff Writers
Thursday, September 18, 2008; A04

A group of computer hackers said yesterday that they had accessed a Yahoo e-mail account of Alaska Gov. Sarah Palin, the Republican vice presidential nominee, publishing some of her private communications to expose what appeared to be her use of a personal account for government business.

The hackers posted what they said were personal photos, the contents of several messages, the subject lines of dozens of e-mails and Palin's e-mail contact list on a site called Wikileaks.org. That site said it received the electronic files from a group identifying itself only as "Anonymous."

"At around midnight last night some members affiliated with the group gained access to governor Palin's email account, 'gov.palin@yahoo.com' and handed over the contents to the government sunshine site Wikileaks.org," said a message on the site.

Rick Davis, the campaign manager for Republican presidential nominee John McCain, issued a statement yesterday afternoon condemning the incident.

"This is a shocking invasion of the Governor's privacy and a violation of law," he said. "The matter has been turned over to the appropriate authorities and we hope that anyone in possession of these e-mails will destroy them. We will have no further comment."

The episode focuses attention on Palin's use of her personal e-mail account as lawmakers in Alaska look into whether she fired the state's public safety commissioner, Walter Monegan, because he refused to take action against her brother-in-law, a state trooper at the time.

Palin has been criticized in recent days for using a personal e-mail account to conduct state business. An Alaska activist has filed a Freedom of Information Act request seeking disclosure of e-mails from another Yahoo account Palin used, gov.sarah@yahoo.com.

That account appears to have been linked to the one that was hacked.

Both accounts appear to have been deactivated. E-mails sent to them yesterday were returned as undeliverable.

Andrée McLeod, who filed the FOIA request, said yesterday evening that Palin should have known better than to conduct state business using an unsecured e-mail account.

"If this woman is so careless as to conduct state business on a private e-mail account that has been hacked into, what in the world is she going to do when she has access to information that is vital to our national security interests?" she asked.

McLeod's Anchorage attorney, Donald C. Mitchell, said Palin declined to comply with a public records request in June to divulge 1,100 e-mails sent to and from her personal accounts, citing executive privilege.

"There's a reason the governor should be using her own official e-mail channels, because of security and encryption," the attorney said. "She's running state business out of Yahoo?"

McCain officials did not return calls and e-mails seeking further comment on the hacking and McLeod's remarks.

The images of the Yahoo inbox posted by hackers are stippled with the names of Palin aides using both official and private e-mail addresses.

Among the e-mails released as part of the records request in June were several from Ivy Frye, an aide, asking a state official whether private e-mail accounts and messages sent to BlackBerry devices are immune to subpoena, then reporting the answer to the governor and her husband, Todd, who also uses a Yahoo e-mail address.

One referenced "Draft letter to Governor Schwarzenegger/Container Tax" and another said "DPS Personnel and Budget Issues," an apparent reference to the Alaska Department of Public Safety.

Michael Allison, chief executive of the Internet Crimes Group, a private company specializing in Internet security, said the hackers may have accessed Palin's account by using publicly available information to guess her password, or by using a small program called a trojan to capture her keystrokes.

"I would hope the authorities would be all over this," Allison said. "The only deterrent is that people know the certainty of being caught."

Government Uses Commercial Email and Texting to Avoid FOIA Laws
Read More: Democracy, Disclosure, Email, Foia, Texting, Transparency, Twitter, Politics News
Peter Scheer
lawyer, writer and advocate for 1st Amendment rights
Posted: August 22, 2009 01:27 AM
http://www.huffingtonpost.com/peter-scheer/government-uses-commercia_b_265809.html

All public officials favor open government in principle. Who would dare say otherwise? In reality, however, they are in a perpetual search, guided by clever lawyers, for new ways to circumvent disclosure requirements--at best, because they view requests for records as a nuisance, and at worst, because they have something to hide (which can range from the merely embarrassing to the indictable).

The latest device for openness avoidance is the use of personal email accounts (and, increasingly, text messaging too) for government communications. Mayors, city council members, agency executives and school superintendents have been told that if they do government business on their gmail or yahoo accounts--anything but their official .gov email--their communications, no matter how focused on government matters, will never see the light of day.

What do your elected representatives do when they believe that their messages about government business are secret? In San Jose, city council members, like proverbial puppets on a string, take instructions during council meetings on how to vote, according to a San Jose Mercury News report on text messages sent by representatives of unions and other special interests.

The former San Bernardino County Assessor, who was arrested on drug charges and is under grand jury investigation, used electronic messaging on personal cell phones to direct his staff in partisan political activities, according to a report of an independent investigation commissioned by the county. The investigators found that the assessor and his staff had chosen this means of communicating in order to avoid creating public records.

You don’t have to be a legal scholar to appreciate the size of the loophole that this practice creates. If all it takes to avoid the obligations of the Public Records Act, California’s freedom of information law, is to use a commercial email account for official communications, then all such communications--except the occasional anodyne and self-serving message actually intended for public consumption--will shift to that private channel. The Public Records Act, already porous with special interest loopholes, might as well be renamed the California Official Secrets Act.

Lawyers for local government say that email and text messages sent or received on a private account, no matter their content, are not “public records” because they are not “. . . owned, used, or retained by” a government agency, as the Public Records Act requires. Electronic communications are “owned, used, or retained by” government only if they reside on a government server, they say. Despite the superficial plausibility of this reasoning, it is, indeed, only superficially plausible.

A government agency doesn’t do anything except through people--employees, elected officials, consultants, whatever--who are the government’s agents. Without getting too deep into legalese here, the point is that the actions of the government’s agents are imputed to the government, and the government is responsible for those actions. An arrest by a police officer, a mayor’s promise to a campaign contributor, a public school teacher’s grading of a student paper--all are actions of and by the government entity that these people represent.

The same is true for written communications about government matters that these people create or receive, regardless of the technology used or the account status. The communications are “owned,” “used” and “retained” by government because they are owned, used and retained by persons in their capacity as agents of the government.

Here’s an analogy. Suppose the mayor of your town, at a private meeting in her private home, signs a written agreement with a contractor to expand the local airport. The agreement is a paper document in the mayor’s house, miles away from her office at city hall. There is no doubt that this document is a public record that belongs to the town because it is “owned,” “used” and “retained” by the mayor as the town’s agent. Nothing changes if the document sits, not on the mayor’s kitchen table, but in the digital in-box of her personal email account at msn.com. Either way, it’s indisputably a public record that belongs to the town.

Finally, the objection is made that a search through a government official’s commercial email account for requested public records is overly intrusive. But any intrusiveness is due to the official’s choice to mix his personal email messages with his emails about government business. The remedy is not to deny citizens their access rights, but for government to adopt email use and retention policies that mitigate, if not eliminate, the problem.

What policies? Consider this proposal:

1) Agencies and local governments should set up one email account with gobs of storage capacity. To keep it simple and inexpensive, a corporate account (offering extra security) with Google or Yahoo will suffice.

2) Agencies’ .gov email accounts, by default, should “bcc” all emails to the government database account.

3) All government employees should be instructed that, when using their own commercial email account for government matters, they must “bcc” their business messages to the database account (and forward incoming business email there too). Basically, any email that is not strictly personal should be copied to the online storage account.

These three simple steps produce a comprehensive government database that provides the agency with a valuable archival resource; allows for consistent application of document retention policies; and, perhaps most important, is fully searchable using search engine technology with which all employees are familiar. Any public records requests for email can be quickly and simply processed through searches of the archive. (No IT personnel are needed!)

Many elected representatives have become proficient at using technology to thwart public access to government. Why not, instead, use technology to enhance the transparency and accountability of government?
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Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition, based in San Rafael, CA. http://www.cfac.org


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