“Frank, This not the Governor’s personal account,” reads a February 7 email from Governor Palin’s official government email account, written by an aide named Donna to Frank Bailey, the Director of Boards and Commissions for the governor’s office. (Bailey was recently suspended, for his role in the Wootengate affair, but ultimately reinstated.)

“Whoops~!” Bailey wrote back.

The email Bailey was trying to send to Palin, revealed after self-described ethics watchdog and registered Republican Andrée McLeod filed a records request this summer, was a tally of the ethnic backgrounds of Palin’s appointees, noting that of those who had declared an ethnic background, some 10 percent were Alaska Native. At the time, the governor was under fire because when she had the opportunity to nominate three appointees to the seven-member Board of Game, there were no Alaska Natives amongs her choices. This would have meant that, for the first time since its inception in 1976, the Game Board wouldn’t have had any Native members.

One of the three appointees, Teresa Sager-Albaugh, withdrew her name after lawmakers expressed outrage, and the day after Bailey’s email, Palin appointed Craig Fleener, an Athabascan, to the board.

When new stories revealed that the governor used at least two Yahoo accounts—gov.sarah@yahoo.com and gov.palin@yahoo.com—for state business, McLeod, a former ally of Palin’s, wondered what other state business had been conducted on the private email accounts.

“It appears from at least a couple of these emails that Andrée got in response to her first request that they were doing it purposefully, in order to keep this email traffic out of the state system, to keep it away from members of the public, and that’s really very disturbing,” says Donald Craig Mitchell, an Anchorage attorney representing McLeod in a recently filed lawsuit attempting to preserve any emails on private accounts pertaining to state business. 

The state of Alaska requires public records of all public agencies to be open to inspection by the public, with few exceptions—this and laws like it in other states are known as Sunshine Laws.

Alaska Statute 40.25.115 addresses public records in the context of electronic files, and mandates that public agencies such as the governor’s office must “protect the security and integrity of the information system of the public agency.” The state’s email system is extremely secure, and archives governmental communications automatically.

Not so with Yahoo.

“When all this first came to light because of Andrée’s first records request, I said, this is nuts—among other things because the state of Alaska spends millions of dollars to safeguard these records,” Mitchell says. “Three days after I pointed that out, she got hacked into.”

On Wednesday this week the Department of Justice announced the indictment of 20-year-old David Kernell, the son of a Democratic Tennessee state legislator, for hacking into Governor Palin’s gov.palin@yahoo.com account. Kernell has pleaded not guilty, and the hack was originally attributed to someone affiliated with the ambiguous hacker group “Anonymous,” which has gained notoriety for its attacks on and opposition to Scientology.

In mid-September, gov.palin@yahoo.com was infiltrated by a hacker who answered Yahoo’s password-retrieval questions correctly, and screen shots of her account were spread across the internet. Images of her inbox contained multiple exchanges from aide Ivy Frye’s personal email account. Among the records that McLeod received in June were emails from Frye asking whether personal emails were subject to subpoenas.

“DPS Personnel and Budget Issues” and “Draft letter to Governor Schwarzenegger/Container Tax” were other subjects of Palin’s Yahoo emails. These clearly appear to be state business.

After the hack, both of the governor’s Yahoo accounts were deactivated, and it’s unclear whether the company can still access those, or if anyone in state government has archived them.

On October 1, the Washington Post’s Karl Vick reported that Palin had maintained yet another private email address to “communicate with a small circle of staff members outside the state government’s secure official e-mail system.” The article said that Frank Bailey was in charge of maintaining that email system.

The same day Vick’s article appeared, McLeod filed a public records request asking for all emails since December 4, 2006, to or from sarah_palin@gov.state.us (the official account), and any emails pertaining to official business of the state of Alaska to or from gov.sarah@yahoo.com, gov.palin@yahoo.com, and Todd Palin’s personal email address, fek9wnr@yahoo.com. Additionally, McLeod requested records relating to public records collection and preservation, and archiving policies and practices.

Mitchell, on McLeod’s behalf, filed a lawsuit and a motion for a temporary restraining order and preliminary injunction seeking preservation of the emails on the personal accounts.

“I’m not sure if anyone is working with the Yahoo folks,” Palin spokesperson Sharon Leighow wrote the Press in an email. “I do know that once the Governor e-mails a state account, it is archived and retrievable. There has been no response to Ms. McLeod’s lawsuit. We don’t normally comment on pending litigation.”

In a 2007 study by the Better Government Association and the National Freedom of Information Coalition, the state of Alaska received only three points out of a possible 100, and a letter grade of “F” for its responsiveness to freedom of information requests.

Alaska’s current public records statutes predate the internet age, and were last significantly amended in 1990. During Governor Tony Knowles’ administration in the mid-90s, Lieutenant Governor Fran Ulmer, now the Chancellor of UAA, chaired the state’s Telecommunications Information Council, which “coordinated policy and programs in voice, data and video.”

“It was the very beginning of the state’s webpage and on line services, email systems, videoconferencing, etc.,” Ulmer wrote in an email.

Alaska’s statutes do not mandate that government business must be conducted on government email accounts.

“All of these things were enacted by the legislature prior to the internet age, and to that extent, it may be that these people are quite purposefully attempting to sort of slide between the statutory requirements,” says Mitchell, McLeod’s attorney. “It may well be that the legislature, because of this unfortunate incident, needs to amend these statutes to bring them into the 21st century, starting with the fact that—if it was up to me—I think it should be a misdemeanor for anybody to engage in state business without using a state email account.”

Anchorage Senator Hollis French, the Democratic chair of the Senate Judiciary Committee, says, “we will definitely be struggling with how to reconcile the fundamental right of access to public records with the advent of new technologies. That’s a fascinating, cutting edge issue.”

Charles Davis, an associate professor of journalism studies at the Missouri School of Journalism and Executive Director of the National Freedom of Information Coalition, has studied the issue of government business on personal email accounts, and says, “perhaps we have reached a point at which we need to mandate that government officials use government email for government business.”

“I guess the analogy I would use is the paper analogy: If you have a sitting governor going home and using private stationery to conduct public business, mailing it out through her home mailbox, there would immediately be an uproar, because that’s clear that that’s violative of the separation between private life and public life,” Davis explains.

“When we move over to electronic technology that analogy kind of falls apart a bit because it’s so seamless… until you stop and think about the fact that whether you’re on a BlackBerry, a laptop, a cell phone—it doesn’t make any damn difference, you can always choose the dot-gov account to send your email.”

Davis has seen McLeod’s records request and the emails from her previous request, including the “whoops” email from Bailey mentioned above. “That’s telling,” he says. “This isn’t like the inadvertent, whoops, wrong account; this is a systematic use of nongovernmental email to conduct government business, and that’s what I’m opposed to.”

In 2007 the Bush White House came under fire for doing something very similar—using email accounts maintained by the Republican National Committee and the Bush Cheney ’04 campaign for official White House communications. The Presidential Records Act is similar to our statute regarding preservation of records, and in 2001 White House counsel had advised staff to only use the official White House email system for official communications and to retain any official emails they received on a nongovernmental account.

A report from June of last year states, “Given the heavy reliance by White House officials on RNC e-mail accounts, the high rank of the White House officials involved, and the large quantity of missing e-mails, the potential violation of the Presidential Records Act may be extensive.”

Experts, including Davis of the National Freedom of Information Coalition and Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press, agree that Palin’s emails regarding state business on her personal email accounts are subject to McLeod’s public records request.

“The only principled way to look at this is to say that if you are using your email to do the public’s business, then that’s a public record,” Dalglish says. “Most states recognize that email is a public record, and I think most states would recognize that you can’t get out of your duty as a public official to respect open records laws by using a private email account.”

If and when McLeod receives the records from Palin’s personal accounts, there’s no telling what further information we may receive about issues like Walt Monegan’s dismissal from the post of Commissioner of the Department of Public Safety (especially considering DPS is referenced in leaked screenshots of the hacked Yahoo account).

Meanwhile, another question looms: because Todd Palin’s personal email address was copied on emails that McLeod was told were not subject to public records laws because of executive privilege, will McLeod’s new public records request for emails regarding state business to or from his personal account be granted?

Considering Governor Palin ran on a platform of “open and transparent” government, one might expect it would be.

bjk@anchoragepress.com