Lawmakers address public records access
Democrats say Palin administration may be withholding documents
Democratic state legislators said they are worried that Republican Gov. Sarah Palin's administration may be withholding public documents by unfairly interpreting her privileges, using private e-mail accounts to keep documents secret, and charging almost $1,000 to search a state e-mail to access state records.
Having access to state documents is a fundamental right, the Democratic lawmakers said, adding that they may soon try to beef up the state's public records laws to address their concerns.
"We've obviously got to do better," said Sen. Hollis French, D-Anchorage. "It's going to be something we work on next session."
"The bottom line is you want the public to have the maximum access to information to how decisions on their behalf get made," said Rep. Mike Doogan, D-Anchorage.
Palin ally Sen. Gene Therriault, R-North Pole, said he wasn't surprised that state Democrats would try to bring up public record issues because they get "their marching orders" from the national Democratic party. But he added that he thought some public record-related issues, pertaining to cost and the use of private e-mails to conduct state business, may need to be reviewed.
Outgoing Speaker of the House John Harris, R-Valdez, said he thinks Republican lawmakers would be open to discussing the need to strengthen the public's access to state records, provided the debate focused on the public's rights and was not framed as a partisan attack against Palin.
"I'll listen to the debate and see what they'll have to say," said Harris, who is relinquishing the speaker job but will likely stay in a Republican leadership position. "If the (Palin) administration or others are withholding information and the law isn't clear about it, we ought to look at making it clear."
The governor's spokeswoman, Sharon Leighow, denied that the Palin administration had improperly withheld any state documents. Palin, who is currently out on the campaign trail as the Republican vice presidential nominee, has said recently that her life is "an open book."
Leighow said the "Palin administration is open to a thoughtful review of public records laws" and suggested that lawmakers should take a look at their own disclosure rules as well.
"It would be interesting to see if the Democrats who want cheaper and easier access for e-mail searches in the executive branch are willing to apply the same lower fees and more liberal rules of engagement for their own internal communications," Leighow said in an e-mail.
Privileged information
Under rules set by the state Supreme Court, the governor has a deliberative process privilege that allows her to withhold state documents from the public. The idea behind the privilege is to allow public officials to receive candid advice on state affairs without fear of that advice being made public.
Determining which of the governor's documents fall under that privilege is typically the job of the attorney general's office, which Democratic lawmakers said may have too much leeway in making those decisions.
Several legal experts and lawmakers have questioned the attorney general's office determination that e-mails sent to Palin's husband, who has no legally defined role in state government, can be kept private by asserting the governor's deliberative process privilege.
Todd Palin improperly used his wife's office to try and have a former family member fired from the state troopers, a recent legislative investigator found. Todd Palin said he was trying lawfully to protect his family from a dangerous trooper.
The Palin administration has withheld e-mails concerning the trooper, his boss and his union that were sent by Gov. Palin and her staff to her husband by claiming the governor's deliberative process privilege, saying "communications between persons outside government can be privileged if (government) officials solicit the communications."
Sen. Kim Elton, D-Juneau, said legislation may be needed to "remove some of the discretion by the governor's attorney general so that ... the rules that apply to what is a public document and what is not a public document are very clear."
Elton and Doogan also expressed concerns that Palin's attorney general, Talis Colberg, is either too politically biased or professionally incompetent to make lawful privilege determinations. They said their concerns were based on how Colberg handled legislative subpoenas during the recent legislative investigation into abuse of power allegations by the governor.
Colberg declined to comment for this story.
Private e-mails
House Minority Leader Rep. Beth Kerttula, D-Juneau said her concerns aren't with Colberg, whom she described as honest, but with the recent revelations that Palin and her staff used private e-mail accounts to conduct state business.
"Things have obviously been hidden from us," Kerttula said. "And that is terribly disturbing."
Palin's spokeswoman Leighow denied that the administration had tried to hide information by using private e-mail accounts. She said there was no "statutory prohibition against" using private e-mail accounts and they were sometimes used "as a matter of convenience."
"When state employees are at home it is often easier to type e-mail messages on a regular keyboard rather than a state issued Blackberry," Leighow said.
Republican watchdog Andree McLeod is suing Palin over her use of private e-mail addresses to conduct state business, arguing the governor had a responsibility to conduct business on her state e-mail account where it could be properly preserved and protected. One of Palin's private accounts was hacked last month, and some of its contents were posted on-line.
An Anchorage Superior Court judge recently ruled that Palin and her staff needed to preserve any private e-mail that contained state business. In response to questions from the judge, Palin's administrative director, Linda Perez, informed the court that 24 employees in the governor's office had used a private e-mail account to conduct state business to "some extent."
Doogan said the entire episode showed a need to update state law.
"What do you do when you have public officials exchanging information in private accounts? That's just not covered by any law we've got on the books," Doogan said. "We're going to have to figure out what we're going to do about that and put it into law."
High costs
Interest in public documents related to Palin and her administration exploded when she was picked to be the Republican vice presidential nominee, particularly records requests that involve the governor's state and private e-mail accounts.
Perez recently asked Colberg for an extension to reply to 18 records requests involving the governor's e-mails. Though some of the earliest requests were made in the first half of September, Perez said the state's IT department won't have the necessary e-mails ready until mid-November.
Perez said records requests are time-consuming and the state needs to charge up to almost a $1,000 to search a single state e-mail account to cover the costs.
Doogan said the administration is obviously stonewalling the requests and trying to "make them go away." Leighow denied any foot-dragging, saying the searches are a "massive undertaking" that "takes time."
Alaska law allows the Palin administration to waive public record request fees, but Perez has said the state can't afford to pick up the cost of searching several e-mail addresses.
Elton said the Legislature may have to take a look at determining what a fair price for public records should be.
"We don't want to price Alaskans out of the market when it comes to finding out about what their public officials are doing," he said.
And Doogan said he'd like to take a look at whether the legal costs of taking the state to court over public records disputes is deterring requests.
In Alaska, losers in civil lawsuits can be ordered to pay the other side's legal fees. Litigants who sued the state over public interest issues were exempt from paying fees until the law was changed in 2003.
First amendment lawyer John McKay said fear of suing the government over public records requests and losing has had a "serious effect of discouraging people from pursing claims for public records."
Leighow said the Palin administration has not discussed a public interest exemption.
• Contact reporter Alan Suderman at 523-2268 or e-mail alan.suderman@juneauempire.com.