It’s like a teacher assigns a problem, and the student comes back with the answer, but does not show his work. I want to see how you got there.”
–Pete Smith, Anne Arundel Councilman, Quoted in the Capital, March 20, 2017
Pete Smith’s critique of voting on bills without a public justification for one’s vote is an apt description of the voting on the Maryland General Assembly’s government email retention bill, HB1241. I testified in favor of the bill on March 1, 2017 and no one either testified or submitted testimony against the bill. Nor did any member of the General Assembly publicly speak out against the bill. But the subcommittee responsible for the bill unanimously voted it down in an unrecorded voice vote. And it was subsequently voted down 18-4 in full committee. This on one of the most high-profile issues–as reflected in the Hillary Clinton government email retention scandal–in the national news during the last 24 months. The three Republican cosponsors of the bill on the committee did vote in favor of it, plus a fourth Republican committee member.
Unlike last year, when the committee chair effectively prevented the bill from coming to a committee vote, this year a vote was allowed. The political logic may have been similar to the legislative redistricting bill, which also last year wasn’t granted a committee vote but this year got one.
To be fair, the bill was dead on arrival because its 12 cosponsors were all Republicans and there was no effort to reach out to the Democrats. The same thing happened last year. Last year, under pressure from the committee chair, the bill’s primary sponsor withdrew the bill. This year, seemingly providing an excuse to vote against his legislation, he apparently told committee members that the Maryland State Archives should convene a task force to develop an email retention policy for Maryland. And when the State Archives replied that it had no interest in leading such a task force, he proposed that Maryland’s Department of Information Technology take the lead, which he would propose in a letter to the governor. The major problem with this argument is that the executive branch,which would be subject to such a policy, would have no interest in creating an effective policy that would cover high level executive branch staffers. That is why all major right-to-know laws affecting other branches of government, including the Public Information Act, have been created via legislation.
Copied below are my various op-eds on this issue:
- Let’s talk about these emails, Washington Post, December 18, 2016.
- Why the Media’s Double Standard On Clinton’s Emails?, Huffington Post, October 31, 2016.
- Deterring government officials’ misuse of private email, The Hill, December 4, 2015.
- The Clinton email scandal: a double standard?, Baltimore Sun, April 1, 2015.
Copied below is my written testimony on the government email retention bill. This testimony largely follows my written testimony about a similar bill introduced last year. My verbal testimony this year was considerably shorter.
Good afternoon. My name is J.H. (“Jim”) Snider. I’m the president of iSolon.org, and I support HB1241.
A year ago last March when former Governor Martin O’Malley spoke at the Brookings Institute about Maryland’s “data driven government,” the reporters in the audience asked him about his handling of his personal email. After all, the Hillary Clinton email scandal had just broken and the story was front page news. In exasperation, O’Malley acknowledged—as does the fiscal note accompanying this bill—that Maryland doesn’t have an email retention policy. This bill aims to fix that embarrassing omission.
Clinton’s email scandal was still front page news until just a few months ago. This bill should call attention to the fact that not only the Federal government’s email policies but Clinton’s email practices are a paragon of transparency and democratic accountability compared to both the policies and practices that have been sanctioned under Maryland’s Public Information Act.
The Anne Arundel School Board Nominating Commission is a public body tasked with nominating to the governor at least two nominees for each open seat on the Anne Arundel County Board of Education. From 2008 through 2015, the chair of that Commission, like Hillary Clinton, used no government email account to conduct the Commission’s business.
Unlike Hillary Clinton, he used four rather than one private email address to conduct his official business. He publicized one of those addresses, a Gmail account, for candidates and other members of the public to communicate with him. Of course, he took access to that private email account with him when he left office.
He also used at least three other private email accounts, two from his company and one from his personal account, to conduct the Commission’s business. When I made a Public Information Act request for his email to the Public Information Officer for the Commission, Michelle Davis, I was not told about these other accounts, and it took me many months and additional Public Information Act requests to discover them.
As I’m sure you will recognize with even a moment’s thought, the opportunities for abuse in this system were incredible, far greater than Hillary Clinton could even begin to dream of in her wildest fantasies.
Why did I pick this particular example? Because the person who served as last year’s Public Information Officer for the Commission was none other than the author of the awful fiscal note for this bill. My correspondence with her concerning access to the Commission’s emails ran 57 pages, and I would encourage you to review it. For reasons I explain in an introductory note to that correspondence, not only was she an inappropriate person to write this fiscal note but so was her boss to assign it to her.
Fortunately, this year’s fiscal note was written by a different person and is a dramatic improvement over last year’s. The cost of the bill is reduced by 95%. Yes, 95%. But even this bill is deeply confused because it doesn’t distinguish between an investment that reduces expenditures in the long run, and a mere current expenditure. The simple fact is that any email system without a built-in email retention system is so out-of-date that it is in desperate need of updating.
Now to focus on all the whining about the high cost and difficulty of government email transparency. No sizable business in the United States allows its employees to conduct company business on private email accounts. Employees are also told that all their communications may be monitored by their employer and that the corporate record keeping systems have been designed to facilitate such monitoring, including central backup of email communications. These email policies are in place because it is inconceivable to modern companies that any other policy could be in the best interest of shareholders.
We live in an age when a company such as Google provides free, state-of-the-art cloud based email service to any American who wants it. That service includes enough storage capacity not just for seven years of official email correspondence but a lifetime. I was at Costco and saw a five Terabyte hard drives available for sale for about $100. That’s enough storage capacity to store every single email written by a Maryland Government employee during a given year.
During the 2014 elections, the county executive in Anne Arundel County campaigned for re-election based in part on her replacing the County’s Groupwise email system–still widely used in Maryland–with the cloud-based Google apps for Government. She contended, despite the short-term initial expenditure, that in the long run it would save the County lots of money while providing a vastly superior service. That service, incidentally, includes the type of built-in email retention policies contained in this bill. All over the country other local government executives are making similar claims about the benefits of moving to cloud-based email such as Google apps for Government.
What explains all the complaining about the high cost and difficulty of providing the bare bones email transparency and accountability contained in this bill? The bottom line is that these complainers don’t want to have a debate about what they really don’t like about this bill, which is their loss of control over their communications. I come from Vermont and have long observed how the average Vermont town, which has a population under 10,000 and an average income below Maryland’s, runs circles around Maryland counties more than a hundred times larger when it comes to public access to information. Still, MACo and MML have shamelessly continued to play the cost card. Enough is enough. If you want to endorse Hillary Clinton style control of email for Maryland, let’s have that discussion—and have it in the open. Anything else, in my judgment, is a fraud on the people of Maryland.
A Microsoft Word version of this testimony can be found here.
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