Palin's use of private e-mail subject of hearing

Mitchell says private e-mails deny inspection of public records

Posted: Wednesday, August 05, 2009

ANCHORAGE - A plaintiff in a lawsuit against former Gov. Sarah Palin wants a judge to order the governor's office to use only government e-mail accounts to conduct state business - not private e-mails as the Palin administration sometimes did.

Al Grillo / The Associated Press
Al Grillo / The Associated Press

Don Mitchell, an attorney for plaintiff Andree McLeod, said at a court hearing Tuesday that such use of private e-mails denies citizens the right to inspect public records.

The issue arose last year after McLeod filed open records requests that yielded some of the e-mail traffic involving state officials including Palin. The lawsuit seeks no punitive action against Palin, who resigned July 26.

Mike Mitchell, an assistant attorney general, said McLeod is misreading the state's open records law, and that the use of private e-mails for state business is a matter for state lawmakers to decide.

In his oral argument Tuesday, McLeod's attorney, Don Mitchell, said even the so-called Troopergate investigation by the state Personnel board was stymied by use of private e-mails.

The board's independent investigator, Timothy Petumenos, noted in his November report the difficulty private e-mails presented in determining if all pertinent documentation was obtained in the probe looking into the firing of Palin's public safety commissioner. Palin was exonerated in the investigation.

"What is the policy objective for the governor being able to create a communications system that obstructs the right of public inspection?" Don Mitchell asked.

Mike Mitchell said the law defines public records as those preserved for their informational value or to document a public agency's operation or organization and doesn't deal with private e-mails.

"It would be easy enough for the Legislature to enact a prohibition against the use of private e-mail accounts for any communication that in any way relates to state business," he said. "The Legislature has not done so."

He noted that a bill introduced in the state House earlier this year does address the issue. It would require a public officer to take or withhold official action through an e-mail system operated and maintained by the state.

The practice of using private e-mail is not intended to obstruct public access, Mike Mitchell said, but for reasons such as testing data systems or allowing people to work at home.

After the hearing, McLeod said she thinks that "Alaskans deserve to know that their public business is being done on the up and up and not through secret channels and secret networks."

Superior Court Judge Jack Smith said he would review the matter and issue a decision in about two weeks.

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