One might think so with the first big “scandal” of the presidential election cycle underway after the revelation that Hillary Clinton used private email for public business while she was Secretary of State in the Obama administration.
The story was first reported back on March 2nd by the New York Times and has been running strong ever since.
The defense from the Clinton campaign operation basically boils down to this. “Everybody does it.” Meaning, elected officials regularly use private email to conduct public business, and as long as the rules are followed there is nothing to be concerned about regarding public records law.
While the Republicans are certainly using the story to score some political points, Clinton does in fact have a point herself. Everybody does it. On March 12th, the Wall Street Journal ran a story about three likely Republicans presidential candidates – Jeb Bush, Marco Rubio, and Scott Walker – who also used private email accounts while in various elected positions.
So, while it is clear this story is as much about politics as it is about transparency, it does shine light on a situation that takes place at all levels of government – even here locally.
Over the last couple of years while writing stories on local politics, I've made several public records requests and had a lot of interaction via email with elected officials. Here are a couple of observations.
The first is that our town staffs are responsive across the board. I regularly receive a response within a few days, and at no time have I ever felt like they are stonewalling.
That’s a very good thing and something I think our local Town Clerks do very well.
However, they can only provide public records if they actually have them, and that brings me to the second observation.
Locally, it is not at all uncommon for elected officials to use a private email account when conducting public business. Most elected officials have accounts for political campaigns. If someone sends a message to that account and it should be a public record, the official is responsible for keeping it. Other times, it is obvious that officials are primarily using non-public accounts out of convenience. You might send an email to their elected office email and get a response back from a personal or work related account.
In both cases, it is basically impossible for the staff to accurately fulfills public records requests because they don't have ready access to anything stored on those private accounts. They can ask elected officials if they have anything meeting the criteria of a records request, but it is up to the elected officials to respond.
My guess is the vast majority of the time use of private email accounts is completely inconsequential. However, there certainly could be times when it is not. Here are a couple of examples.
For one recent request I submitted on the proposed changes to Davidson’s planning ordinance, I received an email from a local organization sent to a pair of town commissioners on their non-public accounts. One of the commissioners included it in the response to the request, the other did not. Based on the subject matter, I have no reason to believe the commissioner who did not forward it was doing so intentionally. It was probably just forgotten.
On the other hand, in a request I submitted last summer regarding the I77 HOT Lanes project, the answer was a bit different.
At the time, a majority of local commissioners had signed a letter to Governor McCrory asking him to delay signing any contacts for the project. In a series of emails between the four local mayors, three of the four mayors were using private email to discuss efforts to prevent this letter from commissioners from being sent.
This only came up in a records request because the one mayor was using a public system. This was a very pertinent political discussion on a very important project, and it was contentious. If they had all been using private accounts would it have come up?
It is impossible to know, but it certainly did not look good.
So, how could our towns solve this problem going forward?
Local towns could pass a policy requiring elected officials to strictly use only their public email accounts for public work. The policy could further state that In the event they receive an email on a private account regarding public business, they should forward that to their public account and only respond from there.
That would remove a lot of gray area and give the public a better sense their government is operating transparently.
Anyone want to take a bet on on that happening?