High Court Weighs in on Records Case

The Alaska Supreme Court on Friday ruled that officials can use private email accounts to conduct state business, ending a contentious debate dating back to the administration of Gov. Sarah Palin.


by BECKY BOHRER, Associated Press

JUNEAU - The Alaska Supreme Court on Friday ruled that officials can use private email accounts to conduct state business, ending a contentious debate dating back to the administration of Gov. Sarah Palin.

The high court's ruling upholds a lower court opinion that found that use of private email accounts wasn't in itself a violation of state public records law.

Palin and members of her administration used private emails to conduct state business when she served as governor between 2006 and 2009.

Activist Andree McLeod submitted a records request in 2008 for all emails sent to or from the private accounts of Palin and her husband. McLeod also sued, arguing that Palin and the governor's office had a responsibility to save as public records emails related to state business, regardless of the accounts the messages were sent through.

The state maintained that state officials should be able to decide what is or isn't subject to public disclosure. Also, if use of non-state accounts was to be banned for state business, then the Legislature - not a court - should say so, officials said.

Superior Court Judge Patrick McKay agreed in a 2010 ruling. He interpreted public records as state agency records preserved, or appropriate for preservation, under the records management act.

But he also later made clear that if a state employee deliberately doesn't preserve a document that should be saved - or is "appropriate for preservation" - under the records management act, then he or she is breaking the law.

In Friday's opinion, Justice Walter Carpeneti wrote that private emails regarding state business are no different from any other records - "those records preserved or appropriate for preservation under the Records Management Act are 'public records'" under the law.

But the opinion states that not every record a state employee creates, "and certainly not every state employee email," is necessarily ap propriate for preservation under the act.

The opinion also found that allowing employees to choose not to preserve a document "is not absurd because, as the State notes, 'each state agency has the best understanding of the preservation value of its own documents.'"

The court said it agrees with the state, that use of private email accounts "is no more an obstruction of access to public records than communicating through paper letters. As the superior court noted, the law requires a state employee to retain records; whether the record exists in paper or electronic form does not change the analysis.

"Thus using private email accounts for conducting state business, alone, does not constitute an 'obstruction' of access to public records under the Public Records Act," the court said.

McLeod's attorney, Don Mitchell, said he disagrees with the court's position equating private email messages to letters that get placed in an office file. "There's no way to know whet her these private emails exist at all," he said, adding that the private Palin emails came to light when McLeod, through a public records request, noticed a private email address for Palin.

After Gov. Sean Parnell took office, he directed executive branch employees to avoid use of private email accounts for state business, and to send any messages that might have come in or been sent on a private account to their state account, Mitchell said.

He said McLeod wanted to establish two legal principles: that messages sent to and from private email accounts of state employees are subject to public review under public records law, and that state employees should not be using private emails.

He viewed the decision as a partial win for McLeod, and an "important step in the proper direction," clarifying the definition of a public record and the state's preservation obligations.

The matter was sent back to the superior court to determine the award of any attorneys' fees .

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Irving Schwartzgard said on Friday, Nov 16 at 2:42 PM

Just curious--of those judges finding in favour of the state, how many were appointed by then-Governor Palin?????

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