I want to bring to your attention an article I published in the Baltimore Sun concerning the email provisions or lack thereof in Maryland’s Public Information Act. The article is titled “The Clinton email scandal: a double standard?” and it briefly observes that presidential candidate Hillary Clinton has been held to a much higher standard of email transparency than local government officials in Maryland.

Let me provide just one example. In my local public school district in Anne Arundel County, I was interested in tracking staff use of government resources to engage in grassroots lobbying and, especially, electioneering. This included seeking emails of the school superintendent and his assistant superintendent in charge of grassroots lobbying, which is publicly described under the umbrella term of “parent and student involvement.”

In Anne Arundel County, this is a very sensitive type of public information. Our previous elected county executive, John Leopold, was forced to resign and serve jail time for using government resources for personal and political uses.
In the course of pursuing this investigation via Maryland’s Public Information Act, I learned the following information:

  • The superintendent apparently doesn’t use either email or an electronic calendar to conduct his official duties.
  • The assistant superintendent routinely deletes old emails and doesn’t use an electronic calendar to conduct her official duties.
  • The school system rotates the tape backup of the central email system every 30 days, the same period as the delay allowed in Maryland to respond to a Public Information Act request. This policy of deleting emails and calendar entries is not in writing; it is a de facto operational policy.
  • The Maryland Public Information Act has no email retention requirement, thus making such behavior perfectly legal.
  • Neither the Maryland Public Information Act nor my local school system has any written penalties for deleting email and calendar entries in response to a Public Information Act request.
  • My reading of my local school system’s policies is that any employee who didn’t delete potentially controversial emails in response to a Public Information Act request would be violating her fiduciary responsibility to the school system. In other words, the school system has an implicit policy of rewarding rather than punishing email deletion in response to a Public Information Act request.
  • Even if the school system had a policy saying that employees couldn’t use email for grassroots lobbying and electioneering, it would be impossible to systematically enforce because there is no effective, independent enforcement system. For example, unlike at the Federal level of government, there are no independent inspectors general, oversight committees, prosecutors, courts, and press with a genuine incentive to investigate and punish such email abuses.

There are many steps that I hope this committee will undertake to alleviate the coverup of controversial uses of government resources via the types of email abuses I have described. At a minimum, Maryland needs to have an email and calendar retention policy so that public officials cannot delete information about their actions that might prove controversial. I would suggest that the email retention policy that the U.S. SEC requires of private companies in the financial services industry would be a good starting point. Another less rigorous option but still far superior to the current policy would be the U.S. Department of State’s email retention policy—yes, the same U.S. Department of State that allowed Hillary Clinton to conduct her official business on a private email server.

Second, it should be a felony to delete emails and calendar entries in response to a Public Information Act request. Here I’d like to remind you that the federal government makes it a felony for anyone having custody of a “record” that is “deposited with… a public officer” to “remove” or “destroy” it, with a maximum penalty of three years. Under this federal law, emails are records and government officials their custodians.

I understand that the politics of fixing this problem are awful in Maryland. Nevertheless, I hope the Hillary Clinton email scandal is now sufficiently salient in the public mind that there is some opportunity to mitigate at least some of the worst abuses.