Remember the Hillary Clinton email scandal that many believe lost her the presidential election? One widely reported part of that scandal was that Clinton didn’t make some of her official emails public when they were requested under government right-to-know laws.
But were the politicians and pundits who claimed to be outraged by such behavior genuinely outraged or just looking for a plausible pretext to attack a political enemy and generate headlines? Three years later, the failure of governments at the state and local level to eliminate the type of loopholes that Clinton exposed demonstrates it was the latter.
Forgive my gullibility: When leaders from both political parties failed to defend and sometimes even publicly excoriated Clinton’s email practices, I foolishly inferred from that consensus that the time was ripe to pass legislation to prevent such practices from recurring.
Fixing email problems at the national level was beyond my means, so I focused on fixing them in my home state of Maryland, which had laws that essentially made Clinton-like email practices not only legal but a fiduciary duty of high-level public officials who didn’t want to embarrass themselves and their bosses.
After I published related op-eds in major news outlets, 17 Republican members of Maryland’s General Assembly co-sponsored legislation during the 2016 and 2017 sessions to bring Maryland’s government email retention standards up to those of the federal government. Alas, legislators weren’t interested in passing the legislation, just in demonstrating that Republicans favored open government. No Democrats co-sponsored the legislation.
I learned the following lessons:
Maryland lacks both an email retention law for public officials and a credible enforcement mechanism, even if it had such a law. As the local state’s attorney, the state Office of Attorney General and state legislators all confirmed, this is a loophole in Maryland’s Public Information Act.
Maryland officials who are the subject of Public Information Act requests like to pretend that Clinton-like email practices are illegal in Maryland even when they engage in similar practices. This pretense is good public relations because in a democracy it’s bad politics for public officials to publicly acknowledge that they don’t want their official actions to be transparent and accountable.
Public officials’ control over public access to their emails is effectively legal not because Maryland’s Public Information Act explicitly endorses such control but because it lacks an effective remedy for such control—and, as lawyers know, a right without an effective remedy isn’t a law, it’s a farce.
This lack of an effective remedy distinguishes Maryland’s laws from federal right-to-know laws, as illustrated by the ultimate resolution of the Clinton case.
High-level Maryland officials strenuously oppose steps to effectively ban Clinton-like email practices largely because they would be hurt by such reforms. This opposition is bipartisan and includes state legislators, the governor and local elected officials.
State legislators refuse to publicly engage in a thoughtful discussion about the difficult trade-offs associated with granting the public effective access to official emails. Instead, they skirt such questions by focusing on the red herring argument that an email retention and enforcement policy would be prohibitively expensive.
In an ideal world, Maryland legislators would close the loopholes that allow public officials to control public access to their emails. But state legislators are no more likely to do that than imposing term limits on themselves.
A second-best solution would be to pass legislation explicitly acknowledging the current reality that senior public officials are effectively exempt from disclosing their emails under Maryland’s Public Information Act. This would at least fix the problem that a democracy based on the rule of law shouldn’t have secret law because secret law undermines democratic accountability.
But even getting lawmakers to publicly acknowledge the truth about Maryland’s email policies is unlikely because then they would be forced to fix the Clinton-like email practices that shield their actions from public scrutiny.
Source: Snider, J.H., Clinton email practices the rule in Maryland, Capital, January 17, 2018.
Snider, J.H., Let’s talk about these emails, Washington Post, December 18, 2016.
Snider, J.H., If we’re going to talk about email, let’s talk about Maryland, too, Washington Post, November 11, 2016.
Snider, J.H., Why the Media’s Double Standard On Clinton’s Emails?, Huffington Post, October 31, 2016.
Snider, J.H., The Public Policy Implications of Clinton’s Emailgate, Huffington Post, February 1, 2016.
Snider, J.H., Deterring government officials’ misuse of private email, The Hill, December 4, 2015.
Snider, J.H., The Clinton email scandal: a double standard?, Baltimore Sun, April 1, 2015.