Superior Court judge sides with state, Palin in e-mail lawsuit

Posted: Monday, January 25, 2010

An Alaska judge has sided with former Gov. Sarah Palin in a lawsuit over e-mail, finding that state law doesn't forbid the use of private e-mail accounts to conduct state business.

Friday's ruling by Superior Court Judge Patrick McKay stems from a lawsuit filed by Palin critic Andree McLeod. McLeod argued Palin and the governor's office had a responsibility to save as public records e-mails related to state business, regardless of the accounts the messages were sent through.

The issue arose from a 2008 records request by McLeod, that showed Palin and members of her staff had been using private e-mail accounts. The traffic uncovered, though, was heavily redacted for what were deemed reasons of privacy. McLeod argued through her attorney that use of private accounts obstructed the people's right to inspect public records.

But Assistant Attorney General Michael Mitchell told McKay that state officials should be able to decide what is or isn't subject to public disclosure. In urging the case be tossed last month, Mitchell said that if the use of Yahoo or other non-state accounts are to be banned for state business, the Legislature, not a court, should say so.

On Friday, McKay agreed.

"The language in our case is clear - the Legislature simply chose to give state agencies some discretion in determining which e-mails are worthy of preservation and which are not," he wrote. A records retention plan through the state archives also makes distinctions, he noted, and classifies non-record e-mails as "transitory" messages, meant mainly for informal communications.

"The Legislature is free to take up the matter," McKay wrote, "but as the statutes are currently written, private e-mail accounts may be used to conduct state business, subject to the same laws and regulations related to preservation as e-mails originating from state servers."

He also ordered to lift a ruling, dating to October 2008, that the governor's office preserve for the life of the suit all e-mails related to state business, saying the office could return to the rules set out by state law and the archives' system.

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