For 20 months, former secretary of state Hillary Clinton’s email practices were front-page news without attention to local
public officials’ similar practices. That needs to change.
Consider Maryland and my home county, Anne Arundel.
When former Maryland governor Martin O’Malley was running in 2015 for the Democratic presidential nomination, he acknowledged
that, like Clinton, he used private email for government business. He explained that since Maryland had no email retention
policy, he violated no law.
In the 2016 legislative session, eight Republican members of Maryland’s General Assembly introduced legislation in the House
and Senate to rectify that omission. But Gov. Larry Hogan (R) didn’t lift a finger to support their legislation, despite subsequently
claiming: “Since day one, we have made it our priority to improve transparency in state government.”
The Office of Maryland’s Attorney General, led by Brian E. Frosh (D), routinely corresponds with local government officials
via their private email addresses. Frosh’s office not only doesn’t discourage them from using private email for government
business but also has insisted that business conducted with private email concerning confidential matters must stay in the
officials’ private archives regardless of how secure they are.
In Anne Arundel County, County Executive Steve Schuh (R) uses private email for government business, including in correspondence
with his staff and appointees to county commissions. Senior public school officials can get around the Public Information
Act a different way: by recycling email backups every 30 days. Since Maryland’s Public Information Act allows 30 days to respond
to a Public Information Act request, staff can delete, transfer or otherwise hide email in response to such a request without
violating Maryland law. My reading of county policy and practice is that employees with embarrassing emails are expected by
one means or another to prevent the public from accessing them.
Sometimes what constitutes government business may appear arbitrary. For example, some school administrators use their personal
email and others their government email when serving as regional representatives for the administrators’ union.
The problem with Maryland’s current email law is twofold: There is no email retention requirement, and, even if there were
such a requirement, it would be unenforceable. Unlike in our federal government, there is no FBI, inspector general or other
independent office with the expertise and incentive to investigate the creative disappearance of email records in response
to Public Information Act requests. Our email records system is based either on trust or reliance on email recipients to publicly
expose controversial emails. That is like basing a criminal-justice system on the premise that criminal gangs will either
turn themselves in or cc: their plans to their victims.
The politics of fixing Maryland’s email abuses are abysmal. Despite Clinton’s email scandal, government officials have every
incentive to turn a blind eye to the analogous problem at a local level. Notwithstanding officials’ hollow commitments to
openness, the problem is so pervasive in Maryland that it is hard to find officials who wouldn’t be implicated and inconvenienced
by fixing the problem. The Maryland Association of Counties, the powerful trade association that represents local government
officials in the state legislature, has been implacably opposed to any efforts to meaningfully fix the problem, and it can
kill legislation discreetly without forcing its members to take an embarrassing public position in support of Clinton-like
Next election season, Marylanders should ask their governor, county executives and school superintendents: What are your email
practices? To what extent should your emails and those of your staff be public? When, if ever, do you condone using private
email for government purposes, deleting emails and archiving confidential information in private record-keeping systems? Have
you ever penalized an employee for violating your stated email policy?
Only by asking such inconvenient questions in public and forcing government officials to answer on the record is there any
chance of them fixing the problem. Sure, they will have strong incentives to creatively obfuscate in response to such questions.
After all, by the nature of their jobs, government officials must pretend they have nothing to hide from their constituents.
But the unpopularity of Clinton’s misleading statements—arguably leading to her electoral defeat—has shown them that such deception can be politically risky.
The time is long past for Maryland to pass legislation locally and statewide with meaningful email retention and enforcement
policies. If we fail to do so, we should eternally forgive Clinton for both her email practices and lying about them because
our double standard will reveal us to be the greater hypocrite.
–The writer is president of iSolon.org.
Snider, J.H., Let’s talk about these emails, Washington Post, December 18, 2016.
Maryland General Assembly bill, HB1241: Public Bodies – Use and Retention of E-Mail – Requirements, was introduced in response to this op-ed and a similar one published in the Baltimore Sun in April 2015.
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