When Vermont Sen. Bernie Sanders faced off against Hillary Clinton at a Democratic presidential debate in October, he brushed off the idea that Clinton’s personal email server was a big deal.
For months, Clinton has been dogged by questions about a server she used while secretary of state. An ongoing federal investigation elevated those questions into a full-blown campaign issue that has drawn the ire of open government advocates and GOP presidential hopefuls.
Sanders said he didn’t care. “I think the secretary is right,” Sanders said to raucous applause from the audience and laughter from Clinton herself. “The American people are sick and tired about hearing about your damn emails.”
But for North Carolina residents, the fuss over private emails has historical relevance.
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In 2010, former Democratic Gov. Mike Easley drew sharp criticism after it became known that he set up a private email account administration staffers said was designed to circumvent public records laws. The secret Yahoo address – the name of fictional film noir detective Nick Danger spelled backward – was eventually revealed in a public records lawsuit by several media outlets, including The News & Observer and The Associated Press.
Since then, governors Bev Perdue, a Democrat, and Pat McCrory, a Republican, have issued executive orders declaring that such emails are public records. But that’s easier said than done.
Three news organizations – WRAL News, The News & Observer and The Associated Press – asked every appointed executive agency secretary and elected member of the Council of State to provide all private emails used to conduct public business for one month in 2015.
The audit revealed that agency heads vary in their use of private email – and that many don’t use it at all.
Although all the agencies queried agreed private email used to conduct government business is public, retrieval frequently depends on the employee whose records the public seeks.
“Even if you have an agency that does an excellent job retrieving and maintaining its records, if one of its officials or employees uses private email, that creates a real headache for those government officials who are trying to do the right thing,” said Jonathan Jones, an instructor at Elon University and director of the N.C. Open Government Coalition.
Queries to several state agencies show that the use of private email represents a gap in public records laws aimed at allowing citizens a look into what officials are doing and saying as they carry out their public duties.
Departments under McCrory’s control, from revenue to cultural resources, could not point to policies instructing how the agencies ensure private email accounts are included in searches for public records if the correspondence doesn’t pass through state-owned servers. That’s also true of Council of State offices headed by independently elected leaders such as the attorney general and the secretary of state.
Agencies can’t archive data on employees’ private accounts if their messages don’t enter the state’s computer system. Instead, agencies request that potential holders of public records produce them from private accounts.
“If we were aware that an individual was using a private email account to conduct state business, we would ask them to retrieve those emails,” Department of Labor spokeswoman Dolores Quesenberry said in an email.
Agencies say they discourage using non-government paths of communications, and a section of the McCrory administration’s public records request policy states that personal emails involving state business “must be retained.” The policy recommends that such communications be printed out and filed or forwarded from the worker’s personal email account to his or her state email account for archival.
Agencies admit that policy and most other provisions depend on state employees to decide themselves what counts as the public’s business.
“If an employee uses a personal email account to conduct state business, it is the responsibility of that employee to preserve the records, either by forwarding the message to their employee email account so that it is saved on the server or printing a hard copy to keep,” DHHS spokeswoman Kate Murphy wrote in an email.
That’s also true for the secretary of state’s office, where spokesman George Jeter says the department asks employees if they have pertinent information in private emails when requests for emails are made.
At the office of Lt. Gov. Dan Forest, staffers are responsible for searching their private inboxes in response to requests.
“In every public records request that involves email or other correspondence, the private emails are searched,” Press Secretary Jamey Falkenbury wrote, adding that his office’s policy falls under general rules about how to return and release information.
Some private accounts used
Forest’s office released 89 pages of emails from his private account from September in a response to a records request.
The records show some of Forest’s top staff also used private email to communicate with him, including Chief of Staff Hal Weatherman, General Counsel Steven Walker and Falkenbury, all of whom used Gmail accounts. Most were routine business.
In another exchange, on Sept. 1, Falkenbury forwarded an email to the lieutenant governor from radio host KC O’Dea, who shared links to several local news stories about a new “Literature of 9/11 course” at the University of North Carolina at Chapel Hill.
“This should be a fun one…” O’Dea wrote, under the subject line: Dan Topics.
“The UNC article made national news today. Fox was all over it,” Falkenbury told the lieutenant governor.
McCrory’s office released 66 pages of emails, largely responses to people who emailed his private account rather than his official North Carolina email address about possible appearances, news events and other concerns. His replies are often brief, and are typically copied to his staffers’ state accounts.
But when he was forwarded a release from the Carolina Partnership for Reform – a conservative group that generally backs proposals from the state Senate leadership – that criticized state legislators for ignoring the needs of rural counties, his response was more pointed.
“Those responsible for this propaganda need to stop hiding behind curtain in these continued misleading attacks,” McCrory wrote to Republican House Speaker Tim Moore from his iPad Sept. 1.
“From Senate. No more nice guy,” McCrory wrote in a follow-up on the message to then-budget director Lee Roberts, Deputy Chief of Staff Jimmy Broughton and Legislative Liaison Fred Steen.
The office of Attorney General Roy Cooper, the Democrat who will face McCrory in the 2016 race for governor, released 23 pages of emails in response to a request. They largely consist of messages from Cooper’s staff about news clips, schedule updates and announcements to his “Roy Home” account.
Cooper never responded to the messages.
No private email
Requests to several cabinet agency appointees and elected department heads returned no documents at all.
State Superintendent of Public Instruction June Atkinson and State Auditor Beth Wood both said they do not use private email for public business.
Wood’s general counsel, Tim Hoegemeyer, said the office avoids private email because it doesn’t adhere to good auditing standards.
“Those standards require that audit work, including work conducted by email, must be accounted for and meticulously documented,” he said in an email. “This could not be done well, or done at all, if business was conducted via personal email.”
Several agencies said government officials may need to think harder about how they treat these records in the future.
In response to questions about the state auditor’s use of private email, spokesman Hoegemeyer said he planned “to take a deeper look at our policies to see what changes may be necessary to address the issues you’ve raised by your inquiry.”
Kelly Hinchcliffe of WRAL, Emery Dalesio of the AP and Mandy Locke and Dan Kane of The N&O contributed.
This is Sunshine Week, a celebration of freedom of information and open government. Look for more coverage tomorrow.