What’s Hiding in State Legislators’ Email?

By Sharon Fisher, 8-10-09

Want to do a public records search on email messages from your state legislator?

Chances are, you won’t be able to, even with the recent move toward transparency in government.

Even states that do have an email retention policy in state government—and many of them don’t—often don’t require legislators or members of the executive branch to comply with it. (We already know that’s the case for members of county government.)

This is becoming an issue in Idaho now because the Moscow-Pullman Daily News is engaged in a tug-of-war with Representative John Stevenson, R-Rupert, over email correspondence with Moscow City Councilman Walter Steed, having to do with water rights. Washington is going through a similar issue.

The National Conference of State Legislatures, the go-to people on comparative state legislative policies, doesn’t have anything written on email retention policies. In fact, the most recent work on the subject appears to be from 2006. “[T]here are still no truly uniform standards for the retention and management of email messages among the states,” that article said. “[A] look at individual policies in the 50 states will find that they are, quite literally, all over the map.” An accompanying list of such state policies as existed looked woefully outdated even then, with policies dating back to 1996, and a somewhat more recent list still shows many gaps. There isn’t even a standard organization that governs the development and management of such policies.

This becomes a problem because citizens can’t find out what their legislators are doing in email. There are no “Watergate tapes” when someone can eliminate entire conversations by pushing a button. “[L]arge numbers of messages, including those that qualify as public records with historical, documentary, and legal value, can be deleted in seconds,” the 2006 article said.

In addition, to evade discovery, government officials have been known to use non-government vehicles for email, which has its own problems.

Even when email records are retained, they can be hard to search or sort electronically. In fact, some states’ policies permit or even recommend archiving email messages by printing them.

The Moscow-Pullman Daily News indicated in another article that it planned to file a petition in district court to recover the deleted email messages, and that such messages are not supposed to be deleted once a public records request has been made.