Saturday, October 13, 2012

Major victory for Alaskan Republican anti-Palin activist Andree McLeod: Alaska Supreme Court rules that emails from private email accounts conducting state business are "public records" and open for public inspection - UPDATE

By Patrick

Sarah Palin's nemesis Andree McLeod: 
Persistent and successful

Sarah Palin had a fairly large number of adversaries when she was the Governor of Alaska, but one person stood out right from the start: Republican anti-Palin activist Andree McLeod, who with painstaking research and courage for example not only discovered Sarah Palin's secret "network" of various Yahoo-email accounts for conducting state business, but then also tirelessly and undeterred by disappointing setbacks turned to the Alaskan courts in order to make Palin's secret emails accessible to the public. Not without reason was she called "Sarah Palin's worst nightmare" by Vanity Fair. Read an overview about various stories regarding McLeod's activities and lawsuits at Palingates.

Some of Andree McLeod's numerous activities were also featured in the following clip:

There have been setbacks for Andree McLeod during the ensuing legal battles which were aimed to make all of Sarah Palin's emails public, but right now, McLeod undoubtedly won a major victory which could pave the way for future Palin-related judgements: In a rather complex decision, the Alaska Supreme Court ruled that "private emails regarding state business are 'public records' under the Public Records Act" and are "appropriate for preservation" - and, even more importantly, are open for "public inspection."

As it sometimes is the case with court decisions, the structure of the arguments in the decision is rather "unwieldy", so to speak, although the main points are very clearly expressed - and the decision by the Alaska Supreme Court contains a number of incredibly important clarifying remarks. The situation is complicated because the lower court, the Superior Court, changed its opinion during the previous proceedings and then made the decision to dismiss Andree McLeod's request for summary judgement despite the fact that, as the Alaska Supreme Court now rules, the underlying legal reasoning demanded a different decision. The Alaska Supreme Court now ruled that McLeod's lawsuit should not have been dismissed, as she was entitled to partial summary judgement.

The importance of this decision cannot be underestimated, taken for example that fact into account that originally the State of Alaska took the position that "failure to preserve a record", for example failure to preserve a private email, intentionally or not (!), automatically would have meant that such an email is "not a public record" and therefore "not available for public inspection." This position, which would have given Sarah Palin a free pass, is being called "extreme" by the Alaska Supreme Court, and the court thoroughly rejects it. The Alaska Supreme Court now firmly establishes that private emails can and should be preserved just like state emails or written records, and they can also be publicly inspected just like any other records.

Andree McLeod today released the following statement:

Anchorage, Alaska: This morning the Alaska Supreme Court took an important step in protecting the Alaska public’s interest in transparent and open government.

In its decision in McLeod v. Parnell (attached) the Court announced that the Alaska Legislature intended emails that state employees send or receive on their private email accounts to be “public records” for the purposes of the Alaska Public Records Act. Because those emails are “public records” they now are available for public inspection and must be archived by the State archivist.

In its decision, the Alaska Supreme Court characterized Andree McLeod’s four-year effort to establish that legal principle as “an important and substantial victory.”

A characterization with which Donald Craig Mitchell, the attorney who represents Ms. McLeod, agrees.

“The Alaska Supreme Court’s decision this morning demonstrates the importance of what citizen activists such as Andree McLeod can accomplish to advance the interests of all Alaskans in ensuring that all state employees, from the governor on down, conduct official state business in a manner that at all times and through all means of communication serves the public interest,” Mitchell said.

Included in the decision, the court believes that ‘…using private email accounts [for official business] is no more an obstruction of access to public records than communicating through paper letters.’

“Further examination is necessary. Important facts bear out in released emails that I finally received by the state a year-and-a-half after my attorney appeared in front of the Supreme Court that, in fact, a strategy did exist in the Palin administration to circumvent official servers with the use of private email accounts on personal devices,” McLeod said.

McLeod continued, “The legislature must update Alaska’s public records laws in order preserve and protect the public’s right to know and inspect official records vis-à-vis recent electronic and communication technological advances.”

Download the decision by the Alaska Supreme Court here.

Screenshots from the decision:

It is not clear right at this moment what the immediate consequences of this decision could be. But in any case, this is clearly a major victory for Andree McLeod and a (late) slap in the face for the former Governor Sarah Palin, who believed that she is safe from public scrutiny with the extensive use of her elaborate network of private email addresses (mainly yahoo-addresses, at least three of them). The decision might also have legal consequences for similar cases in other US states.

Our congratulations to Andree McLeod! Her persistence, despite some previous disappointing setbacks, is hugely admirable. Her tireless and effective activism serves as a shining example for other citizen activists in the USA who might be faced with similar situations.



As we discussed in the comments below, this decision by the Alaska Supreme Court is not a binding precedent for other courts in the USA, but the legal reasoning of this decision could be used as "persuasive authority" by other US courts. As the Alaskan case deals with relatively new legal territory, only very few decisions by upper courts will exist so far, if any - which is why this Alaska Supreme Court decision could prove very valuable for transparency activists!

Interestingly, a major new law suit in Wisconsin in a similar case has just recently been filed (h/t HopeForAmerica):

Common Cause and its partners have been at the forefront of efforts to expose the American Legislative Exchange Council’s dirty backroom dealings. ALEC had been bringing state lawmakers and corporate executives together under the guise of charity for almost 40 years, and they were getting away with it until Common Cause and allies blew the whistle.

In Wisconsin, ALEC lawmakers have tried to cover their tracks by moving their dealings from official e-mail accounts to personal ones outside the public eye. One lawmaker even had the audacity to specifically request (emphasis his) “Please send ALL ALEC material to the Representative’s PERSONAL e-mail.”

Lawmakers using personal accounts for official business isn’t a problem in and of itself, so long as they follow the law. Wisconsin state law even allows legislators to use personal accounts to conduct official government business, but any accounts used are subject to the same disclosure requirements that public accounts are.

When we asked five Wisconsin state legislators to turn over their ALEC communications, they ignored this law and excluded personal emails from their search entirely. Common Cause and the Center for Media and Democracy have filed suit against these five lawmakers to make sure they aren’t hiding any information that the public has a right to know.

The plaintiffs who started this lawsuit in Wisconsin will certainly be very happy about this new ruling from Alaska!

The website "" yesterday published a very good report about this decision by the Alaska Supreme Court. It becomes apparent that Alaska might have to change the Alaska Public Records Act, which then could also set an example for other states in the USA. An Alaskan Assistant Attorney General confirms that it is now firmly established in Alaska that the "method" of transmission is not relevant, but only the "content" of the message. As simple as this sounds, this is a very radical notion and could in fact have far reaching consequences, as people these days communicate via many different channels:

The Supreme Court agreed private e-mails regarding state business should be part of the public record. And McLeod’s Attorney, Donald Craig Mitchell calls the decision a victory.

“All in all, I think this is an important development for vindicating the public interest in Alaska during the new telecommunications, e-mail age,” Mitchell said.

But the court did not agree with McLeod that state employees should be barred from using private e-mail at all for their work. Mitchell says that’s unfortunate. But he says the point may not matter given that Governor Sean Parnell has ordered any state business conducted on private e-mails to be copied to the state e-mail system so it can be preserved.

Dave Jones is an Assistant Attorney General with the Department of Law. He says the state is pleased with the court’s decision, which he says can be boiled down this way:

“What really determines whether something is a public record is its content not the means through which it’s transmitted,” Jones said.

Jones says in principal, the Supreme Court’s decision would also apply to text messages. A former state employee has accused the Parnell Administration of using text messages to hide state business from public records requests. Jones says he doesn’t know whether employees are engaging in that practice, but they shouldn’t be.

“Most text messages are by their nature going to be transitory, that is not something that is not appropriate for preservation,” Jones said. “But a state employee could not try to avoid the effects of the public records act by using a text message as a substitute for a public record.”

But Andree McLeod’s attorney, Donald Craig Mitchell, says even if the intent of the Supreme Court’s decision is clear, the public records law needs to be updated. He says state law on the issue hasn’t been revisited in more than two decades. And he says that means there’s a lot of confusion over how state employees should be using new communications technology.

“If anything comes of this, I hope it would be the legislature stepping up to the plate and reviewing this entire area and making some adjustments to the Alaska Public Records Act that would bring that act into the 21st century,” Mitchell said.

Senator Hollis French, an Anchorage Democrat, agrees the law may need some tweaking.

“The question is are we collecting those private e-mail accounts? Are we collecting text messages? Are we collecting new modes of communication? Facebook messages for example. How do we make sure that those get pulled into the permanent public record files so the citizens are sure their business is being done appropriately?,” French said.

He expects lawmakers to take a look at the law during the next legislative session.

The h/t for the story by "" goes to our friend Phil Munger from the blog "Progressive Alaska", please also read his post about this decision by the Alaska Supreme Court.

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