Judge rules in Palin's favor in e-mail case

Overall lawsuit may still go to trial after Sept. status hearing

Posted: Thursday, August 13, 2009

ANCHORAGE - A judge ruled Wednesday that the Alaska governor's office can continue to use private e-mail accounts to conduct state business, as former Gov. Sarah Palin sometimes did.

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

Superior Court Judge Jack W. Smith said in his ruling that there is no provision in Alaska state law that prohibits the use of private e-mail accounts for state business.

The matter stemmed from a lawsuit filed by Anchorage resident Andrée McLeod, who contends such use of private e-mails denies citizens the right to inspect public records. The overall lawsuit may still go to trial after a status hearing Smith scheduled for September to determine if any issues must still be addressed.

"I'm stunned," McLeod said after Smith's decision. "I'm stunned that something as simple as no private e-mails should be used for state business has become such a complicated issue."

State lawyers argued that McLeod misinterpreted current state law, and that if the practice is to be changed, it is up to Alaska lawmakers do it.

Smith agreed with the state's premise that public records are defined as those preserved for their informational value, or to document a public agency's operation or organization, and that current open records law doesn't specifically deal with private e-mails.

The action will not affect current or future public records requests involving private e-mails if the e-mails meet the preservation criteria, said Department of Law spokesman Bill McAllister.

Since the state can't access private e-mails, such records would essentially be based on an honor system, although the governor's office says it has a policy in place mandating that all private e-mails dealing with state business be forwarded to state accounts.

Mike Mitchell, an assistant attorney general, called the ruling a "very well-reasoned decision" that the state's open records law does not go as far as plaintiffs claimed.

"They raised some valid policy concerns in dealing with the 21st century technology," he said. "Certainly some review of current law is appropriate, but that's a matter for the Legislature and the legislative process rather than the court."

A bill introduced in the state House earlier this year addresses 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.

Smith's ruling came in McLeod's larger lawsuit to compel the state to preserve e-mails sent by Palin on private accounts so they could be available for open records requests.

"There is no direction in the statute that identifies a process for preservation of any records," said McLeod's attorney, Don Mitchell. "And that, in and of itself is a separate conversation."

Palin occasionally had used private e-mail accounts to conduct state business, and her Yahoo accounts were hacked last fall when she was the Republican vice presidential candidate. The hacking showed that the use of private e-mail accounts could make state business vulnerable to being exposed.

It was not widely known that Palin and her staff were using private e-mail accounts until McLeod filed the first of several open records requests that yielded some of the e-mail traffic. Alaska officials redacted much in the e-mails, citing privacy reasons.

Last fall, a judge ordered the state to preserve any government-related e-mails that Palin sent from private accounts. In response, Palin's chief of staff issued a memo directing her staffers to send all private e-mails dealing with state business to their state accounts.

Gov. Sean Parnell, who inherited the office with Palin's resignation last month, continues to follow that policy, according to his spokesman Dave Murrow.

"He's leading by example that whenever he conducts state business he uses the state e-mail account," he said. "There have been a few instances involving private e-mails that were forwarded to his state account."

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