Saturday, November 10, 2007

Sunshine law policy on email retention needs Attorney General's clarification

I'm beginning to think there may be something to Tony Messenger's fuss about his email request regarding "Martin's attempts to rally pro-life groups to urge Attorney General Jay Nixon's removal from a case defending a new abortion law." But it still isn't a settled issue.

I'm always willing to accept fact and accept the truth and I also recognize that there are some things about the Sunshine Law that I don't understand (in fact, maybe that no one understands). That doesn't change anything in regards to Eckersley's charge that he was fired for calling attention to email retention, in my opinion, but, in fairness, Messenger's questions regarding his original request for an email from Martin are legitimate.

Last Sunday, November 4, Messenger laid out how often the Governor's position has changed (a characterization I am uncomfortable with), here:

He quoted an AP story:

"Here's an Associated Press account of the changing opinions coming out of the governor's office:

"Blunt has offered varying explanations for his office's handling of e-mail records. In one interview, he said that 'nobody saves e-mails for three years.' In another, he said his office has no written policy on e-mail retention but merely follows the Sunshine Law. In yet another, Blunt acknowledged using 'four or five' e-mail accounts and deleting some messages to avoid an overflowing inbox.""

I could word parse a little here, for instance, was Blunt saying that nobody saves ALL their emails for three years or was he saying that nobody saves ANY emails for three years? That's not really clear.

The AP, in the portion of the story Tony quoted, quotes Blunt and stays with the facts of what is known about Blunt's "position," Tony hasn't always done that and that has been of as much interest to me as the actual story. I think if you follow what I have written in the past you will recognize that. My questions have been, for the most part, about how far an editorialist should go in drawing conclusions and taking a side BEFORE all the facts are out and the truth is apparent.

Case in point, in the same column last Sunday Messenger wrote:

"Herschel tries to suggest that reporters should be more interested in the attorney general's office and how it handles e-mails. He takes issue with how Eckersley has characterized his firing. And he offers yet the latest in changing explanations for how the governor views retention of e-mails."

He was referring to a portion of a letter Herschel wrote :

"...with respect to e-mails, our retention policy is similar to and perhaps superior to that of the attorney general's office: e-mails that are not public records are retained; some that are not public records are not retained; others that are not public records are retained. Paper documents and digital documents are treated under the same standard. (Attorney General Nixon's spokesman told The Associated Press on September 24, 2007, that the attorney general's office routinely deletes e-mails that are not public records. This is common practice.)"

You see, I question whether Herschel tried "to suggest that reporters should be more interested in the attorney general's office and how it handles e-mails?"

I don't see any "suggest(ion)" that reporters should be more interested in the attorney general's office and how it handles email than in the Governor's retention policy. This is where I take issue with Messenger. His over-exuberant excitement over assuming that he knows the motives behind statements made by the Governor and/or his administration. Certainly, as an editorial writer he will do so but it is his obvious excitement at finding an "AHA!" moment with the Governor's office on this issue that has been tedious and debatable in almost every instance. I question his analytic abilities to conclude the motives and intentions of others without asking and I always have.

Regarding Messenger's statement:

"He (Herschel) takes issue with how Eckersley has characterized his firing."

Herschel wrote:

"He (Eckersley) now claims he was fired over the Sunshine law. There is nothing that supports his assertion, and we only released documents supporting the true reason for his dismissal after he made false claims to the media."

Herschel is correct, Eckersley is claiming he was fired over the Sunshine law and there really hasn't been anything that supports that assertion. It sorta galls me that every single time the Governor or his administration has offered further elaboration on their policy, which has been identified as "to follow the Sunshine law" that they've been charged with changing their story. I don't view it so much as a "change" of their position as an elaboration on their policy.

For instance, their policy is to follow the Sunshine Law. Herschel, same letter, wrote:

"So you will know our policy, it is to meet fully the disclosure standards of the relevant statute (the "Sunshine Law," Chap. 610 et seq RSMo). Our policy is provided to employees at Section 5.11 of the office manual. Further, the policy is consistent with the recommended practices of the Secretary of State."

How is this a change? "Our policy is "X" and "X" is provided to employees as a part of the office manual. "X" is consistent with the recommended practices of the Secretary of State." Clarification for the record, not an attempt to change their position, in my opinion. It's true that Blunt stated "there is no policy," but it is also true that he QUICKLY followed that statement with "Our policy is the Sunshine law."

Don't get me wrong, I think there is legitimacy in Messenger's questions:

"Why were Martin's e-mails deleted? Was that a violation of the state's e-mail retention policy?"

But I can't agree with Tony that there is "no doubt" that deleting emails regarding "Martin's attempts to rally pro-life groups to urge Attorney General Jay Nixon's removal from a case defending a new abortion law," was a violation of the state's email retention policy. I don't think that's a settled issue but I am leaning a little more toward Messenger's assumption.

Tony wrote:

"The bottom line is this: I'm seeking the truth, governor. Are you?"

He's already implied that the Governor is NOT seeking the truth. He wrote here :

"The bottom line is the same as it always is: Taxpayers deserve the truth.

When it comes to the Sunshine Law, Scott Eckersley told it.

The governor's office has not."

On Tuesday, November 6, Messenger wrote under "Another Herschel letter,":

"that e-mail was deleted and not provided in accordance with the Sunshine Law (which is not in dispute)."

Email retention policy simply hasn't been settled, in my opinion, and if Messenger spent more time trying to get to the bottom of that and see that it is settled instead of seeming to be so exited about pouncing on the Governor and his administration for unproven charges this whole episode would be easier for me to stomach.

Then in "AP: Memo backs Eckersley," Messenger quoted an AP story. Excerpts of that AP story:

"The memo also pointed out that Blunt himself signed a record retention policy in 2001 when he was secretary of state that said state agencies must retain for three years records, including “all general communication.”’ The e-mail stated an updated retention policy kept that requirement. The memo used all capital letters to emphasize that e-mails are considered public under the Missouri Sunshine Law because the statute covers any document “written or ELECTRONICALLY STORED, retained by or of any public governmental body.” The memo is not clear-cut in its stance that e-mails are public documents. It says not every e-mail is automatically public because the Sunshine Law excludes letters or documents that a government agency receives, but does not retain...."

"...The memo says the reporter is in error to assume specific e-mails mentioned in the article are public. The memo also suggests a way Blunt can handle the story as a campaign issue against Attorney General Jay Nixon, Blunt’s presumed Democratic rival in the 2008 governor’s race. “If we want to attack the AG on this we should not ask the post-dispatch why they have not requested letters from Nixon, we should ask Nixon to clarify the retention schedule as one of the members of the commission that created it,” the memo says...."

"...It was sent to two people, including a Blunt aide. It is not clear if any of the recipients passed the memo on to Blunt, his chief of staff Ed Martin or anyone else in Blunt’s office. Eckersley said he wouldn’t comment directly on the memo, citing attorney-client privilege. He repeated his claim that he sent
several memos like it, and said they all made the same argument. He said the memos went to Martin, Chrismer and legal counsel Henry Herschel. Blunt officials have repeatedly denied that claim. On Oct. 30, Blunt’s chief counsel for the Office of Administration, Rich AuBuchon, told the AP: “Mr. Eckersley never once voiced a concern, never once wrote an e-mail, never once talked to other employees in the office evidencing any concern that the governor’s office was not complying with the Sunshine Law or any record retention policies.” On Friday, Chrismer reiterated that Blunt’s office has “no record that Scott Eckersley ever wrote or stated that the practices of our office were inconsistent with any law or standard on record retention and I cannot comment on a document that any news outlet has so little confidence in that it will not provide it to me....”

It seems to me that Eckersley's advice that "we should ask Nixon to clarify the retention schedule as one of the members of the commission that created it," was good advice and that there still is no proof of Eckersley's claim that he was fired for advising the Governor's office on their email retention policy. I'm still just trying to stick to the facts as they are known and as willing to accept the truth as ever.

Note: All emphasis mine

No comments: