“E” in “email” should not stand for “evasion”

By Kenneth F. Bunting

Photo of Kenneth F. BuntingCOLUMBIA, Mo. – Soon after getting the first CNN producer’s message asking about my availability for a live, next-morning segment with their anchor, I responded affirmatively—even before a half-day meeting had concluded.

It was a busy day in a busy week. But the planned segment was about the clever ruse Louisiana Gov. Bobby Jindal’s aides used last summer to get around public records laws. To avoid possible disclosure, Jindal’s top advisors used personal email accounts while devising a communications strategy regarding hundreds of millions of dollars in Medicaid cuts, and a CNN segment about that duplicitous dodge struck me as a godsend.

Issues surrounding government transparency, my area of education and advocacy, don't always lend themselves to clear, black-and-white analysis. When they do, they are often arcane, and lack the sexiness for the attention-grabbing resonance the topic deserves.

But this one was comprehensible, with none of those shortcomings.

It was blatant and obvious. Jindal’s political prominence and the subject matter nexus to the national health care debate gave it added news oomph. Better yet, it spotlighted a disturbing trend—use of personal computers, devices and email accounts to conduct public business out of the public eye—a recurrent issue being debated, litigated and legislated in state after state.

Too, the secret emails Jindal’s aides exchanged made clear, in their own plain words, that there was nothing unintentional or inadvertent about it.

So, six hours and 13 minutes, three phones calls and 16 emails after the first message, it was somewhat disappointing when a second CNN producer wrote: “Unfortunately things are changing here on our end and we are going to have to cancel the segment for tomorrow.

Our apologies!!!”

My admittedly self-serving thought: “ . . . blown opportunity.”

On live television, anchors are more in charge than even the most script-practiced guests. But certainly, an on-air conversation last Thursday with anchor Don Lemon would have offered a platform to talk about the importance of open government, as well as the specific issue of non-governmental email addresses and computer equipment hiding secrets.

Almost certainly, I could've pointed out that what Jindal’s aides did to conceal formulation of their public relations strategy, cunning as it might seem, was not that unusual.

With slightly nuanced differences, Sarah Palin and Mitt Romney employed similar practices as governors. Former New York Gov. Eliot Spitzer encouraged the same tactic, even while he was attorney general.

The Associated Press obtained the emails between Jindal’s aides after a cabinet-level agency’s response to a records request failed to include them among 3,800 documents released.

A lawsuit regarding emails between Palin and her aides went all the way to the Alaska Supreme Court. New York’s highest court ruled, in 1987, long before the Internet was in widespread use, that  public officials’ writings about government business are presumed to be public regardless where they are received or where they are stored. 

The same crafty end run Jindal’s aides used is at issue currently before the state Supreme Court in Illinois, the Texas Court of Appeals and the Superior Court in the District of Columbia. Congressional and internal probes have examined private email accounts and email aliases used by some Obama Administration officials.  Some state legislatures have also wrestled with the same issues.

So far, no appellate court has sanctioned the silly notion that a document that would be “public” if produced on a government computer is automatically rendered non-public if a public official uses his or her home computer or a private email account. But attorneys who advise local governments have even encouraged the practice, and declared it sound and legal.

That was the case in Auburn, California, where earlier this year the First Amendment Coalition, one of my organization’s state-based affiliates, brought suit and won an important settlement. The Washington, D.C. Council got similarly bad legal advice and was sued by our DC member affiliate in October.

A recurring underlying question is how an agency can be compelled to disclose records they do not know exist or have no means of obtaining? In legislatures, rhetoric and proposals have at times appeared just as inclined toward enabling the shameful practice as toward fixing it.

Perhaps, I never would have had the chance to mention all of that.

Although talk-format cable news is often the most complete nowadays, television news, live or on tape, is still mostly dispensed in sound bites.

Despite that, I thought the opportunity to briefly decry the shallow, thinly veiled ploy would be well worth it. And, it would've been even better if time also permitted a chance to point out the irony that Jindal’s aides and others are engaging in this form of cyber chicanery while others, in and out of government are using technological tools and innovation to bring about more transparency and citizen access than ever before.


Ken Bunting is executive director of the National Freedom of Information Coalition (NFOIC) at the University of Missouri School of Journalism. He is a former reporter, top editor and news industry executive who worked for the Fort Worth Star-Telegram, the Los Angeles Times and the Seattle Post-Intelligencer, among other newspapers.