Judge determines Perdue order fits state records law

He delays action on Easley e-mail

Staff WriterAugust 4, 2009 

— A new executive order signed by Gov. Beverly Perdue requiring her administration to retain government e-mail fully complies with the state's public records law, a judge said Monday.

However, Wake County Superior Court Judge Howard Manning took no action on a motion from lawyers for Perdue to dismiss the lawsuit filed by several North Carolina news organizations, including The News & Observer and The Charlotte Observer. The media organizations sued last year over the mass deletion of government e-mail by Gov. Mike Easley's administration.

The lawsuit was filed after Debbie Crane, a former spokeswoman for the state Department of Health and Human Services, publicly disclosed orders she received to delete all e-mail sent to and from the governor's office each day.

That contention was later supported by handwritten notes from two other administration spokespeople from a meeting in which they were instructed by the governor's press office to delete e-mail.

Show me the messages

Without conceding that any e-mail was deleted by the Easley administration, Special Deputy Attorney General Dale Talbert on Monday challenged lawyers for the media organizations to produce the deleted e-mail messages to prove they were, in fact, deleted. And if they were destroyed, he said, the Perdue administration could not now be expected to produce them.

Talbert also argued that Manning could not issue a finding in civil court that the Easley administration deleted e-mail because that would indicate the former governor committed a criminal act for which he has not been tried in criminal court. Knowingly destroying public records is a misdemeanor under state law.

Talbert said the media lawsuit, which was originally filed when Easley was still governor, is no longer valid because the new governor has issued an order telling her administration to follow the law.

Manning delayed making any ruling on the motion to dismiss the case.

"I'm declaring the new governor's policy to have a clean bill of health," Manning said to Amanda Martin, the lawyer representing the media organizations. "But I'm not going to dismiss your case today."

New policy, more time

Manning, who made a point of saying he doesn't use e-mail himself, gave Martin 30 days to review a lengthy new policy regarding e-mail retention released by the state Department of Cultural Resources last week and to update the complaint to reflect the new action taken by Perdue.

Perdue's order requires e-mail involving government business to be electronically archived for 10 years. However, it would still give state employees discretion to delete personal e-mail or spam.

"I'm not going to order them to comply with the law," the judge said. "People are supposed to comply with the law."

Manning observed that a next step in the case could be for the state to provide documents that could prove uncomfortable for Easley, who is now under scrutiny by both state election officials and federal prosecutors for alleged campaign-finance violations and influence peddling.

E-mail released earlier this year by N.C. State University showed aides to Easley were directly involved in 2005 discussions with officials at the state-supported school about hiring then-first lady Mary Easley.

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