No excuse not to preserve official emails

In theory, the changeover from paper to email should make government more transparent. The cost of archiving documents should be lower, because data can be housed on relatively small hard drives rather than in spacious warehouses. Likewise, the time expense of retrieving that data should be reduced, because it can be obtained through a few keystrokes rather than a tedious search of file cabinets.

Consequently, open records requests should be far easier to fulfill, because electronic correspondence and memos are keyword searchable. Yet two New York politicos are showing that the era of Big Data does not necessarily mean the public gets a better view of its government.

The first is Hillary Clinton, the Empire State’s former senator. According to reports this week in The New York Times and Associated Press, Clinton avoided using a government email address as U.S. secretary of state, instead conducting State Department business through a personal account on her own private server. The Times notes that “the practice protected a significant amount of her correspondence from the eyes of investigators and the public.”

According to one legal expert, Clinton’s move may have run afoul of the spirit — if not the letter — of rules governing federal records.

“It is very difficult to conceive of a scenario — short of nuclear winter — where an agency would be justified in allowing its cabinet-level head officer to solely use a private email communications channel for the conduct of government business,” a former lawyer for the National Archives and Records Administration told the Times.

At least Clinton’s emails may still exist somewhere, and could be made public if she and the State Department choose to release them. The same cannot necessarily be said for emails from the New York state government, thanks to Democratic Gov. Andrew Cuomo.

Last week, his administration began mass deletion of state government emails that are more than 90 days old. It is a data purging policy he first instituted in 2007 as state attorney general, making it harder for the public to know if his office investigated bank fraud in the lead up to the financial crisis of 2008.

In the Cuomo administration’s announcement of the new policy for other branches of state government, the governor’s chief information officer said the objective is “making government work better.” While Cuomo officials have suggested that the purge policy is a technical necessity to consolidate email systems, an official at the Electronic Frontier Foundation said “there’s no technological reason that New York can’t maintain these records indefinitely.”

What’s particularly notable about Cuomo’s move is that it comes amid a sprawling federal probe of corruption in New York state government. Indeed, right now, the U.S. attorney for the Southern District of Manhattan has said that “we have a number of investigations going on” in Albany.

In light of that, a former Justice Department official in the Clinton administration, Melanie Sloan, told International Business Times: “This is potentially obstruction of justice. The only reason that the government destroys records is so no one can question what it is doing, and no one can unearth information about improper conduct. There’s no reason for New York not to preserve this information.”

The key lesson from both of these stories is that the age-old tricks of subterfuge are still available in the information age. The proponents of secrecy may not have to use clunky document shredders anymore; instead, they can shred more of those documents with a click of a button.

Preserving any kind of open government, therefore, requires continued vigilance and stronger freedom of information laws because new technology alone does not guarantee transparency. Too often it can foster the opposite.

David Sirota’s email address is ds@davidsirota.com.