Can Gov. Sarah Palin legally keep e-mails between her husband and her administration from being released to the public?
That's the question the lawyer of Andree McLeod, a self-described Republican watchdog, put to the governor last week in an appeal to disclose e-mails between her administration and her husband, Todd.
Those e-mails could shed light on how Gov. Palin, the Republican vice-presidential candidate, runs the state. And they could also help reveal what role Todd Palin, who the state Legislature's special investigator called a "central figure" in the governor's firing of former Public Safety Commissioner Walt Monegan, played in his wife's administration.
In July, the governor's office refused to disclose the contents of about 40 e-mails between Todd Palin and Gov. Palin's administration as part of a larger public records request by McLeod. Other e-mails between Todd Palin and the governor's staff were released, McLeod said, but had some parts redacted. Todd Palin is copied as a recipient on most of the e-mails but also authored a few.
Some of the subject lines of the withheld e-mails, which were created between Feb. 1 and Apr. 15. of this year, included: "Andrew Halcro," and "PSEA." Halcro is a political rival of Palin. The PSEA is the union that represents the Alaska State Troopers, including trooper Mike Wooten, who is divorced from Gov. Palin's sister and is also a key figure in the investigation of Monegan's firing.
In redacting or denying the request for e-mails, the governor's office mostly cited Gov. Palin's right to a "deliberative process privilege," a law designed to let public officials receive candid advice from their staff and consultants regarding matters of the state without fear of that advice going public.
But McLeod's lawyer, Donald Mitchell, said Gov. Palin waived that privilege when Todd Palin was included in her staff's e-mails. Documents released to one member of the public have to be available to all members of the public, he said.
"Mr. Palin is a private citizens whose only connection to the office of the governor is that, at your invitation, he from time to time is physically present in the offices of ... the governor for no reason other than that he is your spouse," Mitchell wrote in his appeal directly to the governor.
Those who pay attention to Alaska's public records laws said Mitchell's legal argument holds water.
Larry Persily, a former Empire editor who recently finished working for Gov. Palin in Washington D.C., said he would bet his Alaska Permanent Fund dividend that a judge would agree with him that Gov. Palin has no claims to the deliberative process privilege once her administration's e-mail discussions include her husband.
"The dike has got a hole in it, it's over," Persily said.
"Absolutely," agreed consultant and Empire columnist Gregg Erickson, who had one public record request in the 1990s take several years to be settled by the Alaska Supreme Court. "I think (Mitchell) will get (Todd Palin's e-mails), but I wouldn't be surprised if it takes a very long time."
But other experts weren't as sure.
John McKay, an attorney who teaches media law in at the University of Alaska Anchorage and has represented numerous media organizations in Alaska including the parent company of the Juneau Empire, said he needs to know more about why the state is invoking the deliberative process privilege before he can say whether its reasons are valid.
"It obliviously raises questions on the face of it," McKay said. "but without knowing more, I can't tell how those questions should be answered."
Media expert Carl Stern, a professor emeritus of media and policy affairs at George Washington University in Washington, D.C., said Gov. Palin needs to show that Todd Palin was in a "privileged circle" of advisers if she wants to have a leg to stand on in arguing that the deliberative process privilege extends to her husband.
Stern pointed out a somewhat related case in the 1990s in which a federal appeals court ruled that Hillary Clinton, who had been appointed by her husband, former President Bill Clinton, to head a task force on health care reform, was a de facto public official and confidentiality privileges extended to her.
Palin's spokeswoman Sharon Leighow deferred questions regarding e-mails between Todd Palin and the governor's administration to Assistant Attorney General David Jones, who said he could not answer questions seeking legal opinions.
But he did attempt to clarify Todd Palin's role in the government.
"Mr. Palin's official role is not defined by statute or regulation," Jones said in an e-mail. "Like the spouses of prior governors, he participates in various functions as a representative of the state. But he is not a state officer or employee and does not receive a state wage or salary."
Jones said he did not know why the governor's administration and Todd Palin were sending e-mails to each other.
McLeod said she had not yet decided if she will pursue the e-mails in court if Gov. Palin does not release them. She said that if the governor were true to her word of running an open, ethical and transparent government, she would release the e-mails.
"The people have a right to know the inner workings of the government," McLeod said.
John Cyr, executive director of the PSEA, said the union also has submitted a public records request for some of the same documents. (The Juneau Empire filed a public records request last week for access to e-mails between the governor's office and Todd Palin.)
Persily said the entire episode shows that Palin and her staff weren't paying attention to legal details.
"The lesson is: Be careful who you CC on an e-mail," he said.
And, Art Chance, a 20-year state employee who dealt with sensitive labor negotiations for the state, said the governor's staff had been "felony stupid" for failing to warn her not to leave a paper trail, including e-mails, of potentially embarrassing material.
"You can't come in (as governor) knowing all the intricacies of this stuff. You have to rely on the people inside the bureaucracy to keep you straight," Chance said. "And they didn't."