Underpinning the coverage of the Hillary Clinton email scandal is a double standard: She is being pilloried for email practices that are widely used throughout government from local school districts up to the federal level, from junior up to senior administrators and from many past as well as current officials.

Admittedly, the press has tried to grapple with the double standard by comparing her practices with those of other government officials in similar positions, such as presumptive presidential nominees (Martin O’Malley, Jeb Bush, Rick Perry and Scott Walker) and former secretaries of state (Colin Powell).

For example, a recent Baltimore Sun story about former Maryland Gov. Martin O’Malley observed that Mr. O’Malley used private Gmail for all his official communications and that, like Ms. Clinton, he and his staff, rather than an independent arbiter, got to decide what was worth preserving as a public record.

However, compared to my local Maryland public school system in Anne Arundel County, which only retains email for 30 days, these other email retention policies may be paragons of openness. Because Maryland’s Public Information Act allows up to 30 days to fulfill an information request, the school system’s 30-day retention policy means emails with potentially embarrassing information are effectively exempt from disclosure. No practical penalties appear to exist for deleting emails in response to a Public Information Act request, either. This loophole in Maryland’s Public Information Act makes a mockery of Mr. O’Malley’s rejoinder to press inquiries about his email use last month: “in our state, whether you used a personal email or a public email or a carrier pigeon, it was all a public record subject to disclosure.”

So let’s stop pretending that Ms. Clinton’s email practices are uniquely bad. Public email record keeping laws are riddled with loopholes, which public officials routinely exploit. Then, because hiding information implies having acted adverse to the public interest, they have a strong incentive to deny and otherwise cover up such practices.

Framed in economic terms, there is an imbalance between the supply of scandalous email behavior and the demand for reporting on it. Public officials’ supply of such behavior is bottomless, but the effective demand for investigating and exposing it is not. It’s a winner-take-all political market where the press and political elites have proven it’s only worthwhile for them to go after the highest profile targets.

A new paradigm for government email public policy is needed. Public officials should be banned from using private email for public business. Period. Doing otherwise should be meaningfully penalized, including with firing. If personal and public emails are commingled, any privacy right over personal emails should be forfeited.

Most important, the public record foxes should no longer be allowed to guard the public record chicken coops. A mechanism should be created for one trusted independent party to archive email records while another verifies claims about the existence and contents of those records. Emails regarding any public business should be copied and archived at the instant of their creation or receipt on the computer system of the agency with ultimate responsibility for email archiving, for example, the National Archives for federal agencies and the Maryland State Archives for Maryland state and local government.

Emails containing private or sensitive information need not be made public. However, if a designated judge, legislative oversight committee, inspector general or public information officer has reasonable cause to believe a public official is violating either the letter or spirit of a public records law, they should be able to verify the official’s claims.

The advent of cloud-based email storage makes such email policies economically feasible. With today’s storage costs, an individual’s lifetime of work emails can be stored for less than $10. Many large-scale businesses already have comparable centralized archiving systems and policies in place for their employees who use email for business purposes.

There should be no double standards in enforcing public record laws. But for that to be a practical reality, we must rethink the architecture of email retention and disclosure.

The Clinton email scandal has legs because it is a presidential and partisan issue. But it risks becoming a witch hunt unless set in a larger and fairer context: the propensity of our public officials throughout government to hide their controversial actions and the reasons — some good but mostly not — our right-to-know laws facilitate such secrecy.

J.H. Snider is the president of iSolon.org, a non-profit that develops and advocates reforms where elected officials have a conflict of interest with the American public, especially in the use of information technology, to make themselves more democratically accountable. His email is contact@isolon.org.

Source: Snider, J.H., The Clinton email scandal: a double standard?  Baltimore Sun, April 1, 2015.

 

 

Selected Public Information Act Correspondence with AACPS Public Information Office

(I have highlighted relevant passages in red)

From: J.H. Snider
Sent: Friday, May 02, 2014 4:03 PM
To: Mosier, Bob
Subject: Public Information Act Request

Dear Mr. Mosier:

Under the Maryland Public Information Act, State Government Article (SG) §§ 10-611, et seq., I request a copy of the document(s) used by the AACPS Technology Division to administer the AACPS monthly email backup procedures, including the day of the month or other designator on which the monthly “tape rotation” is made.   Please also provide the operational file used by the Technology Division to determine which backup tape to select to retrieve an email transmitted on a particular date. 

I would presume that since this request is made of the Technology Division, it would have any requested information in electronic form.  Please forward the requested information to my e-mail address at jhsnider@hotmail.com.

Sincerely,

–J.H. Snider

 

From: Mosier, Bob
Sent: Tuesday, May 20, 2014 2:14 PM
To: J.H. Snider
Subject: RE: Public Information Act Request

May 20, 2014

Dear Mr. Snider:

This letter is in response to your request for information under the Maryland Public Information Act (the Act), State Government Article (SG) §§ 10-611, et seq., received by Anne Arundel County Public Schools on May 2, 2014. Specifically, you request “document(s) used by the AACPS Technology Division to administer the AACPS monthly email backup procedures, including the day of the month or other designator on which the monthly “tape rotation” is made. Please also provide the operational file used by the Technology Division to determine which backup tape to select to retrieve an email transmitted on a particular date.”

As I have conveyed to you before, AACPS backs up emailboxes to tape nightly (not monthly, as you continue to assert). Those tapes are kept for 30 days.

By way of summary, AACPS uses virtual tape (disk) and physical tape technology to perform daily backups of all AACPS employee mailboxes. Physical tape backups are stored at a secure off-site location for 30 days at which time they are overwritten for the next rotation.

Full backups to virtual tape (disk) are done on Monday, Wednesday, and Saturday, and are overwritten after 30 days. Incremental backups are done to virtual tape (disk) on Tuesday, Thursday, Friday, and Sunday, and are overwritten after 30 days.  Full backups are done to physical tape on Monday, stored at a secure off-site location for 30 days, and then overwritten.

Tape sessions are selected to restore based on what best matches the request.  For example, if the request is for information from three months ago, the oldest session is selected (30 days ago).  If the request is for information from last Friday, last Friday’s session would be selected.

Anne Arundel County Public Schools is denying any further information responding to your request in accordance with the following provisions of the Act:

  • SG §§10-617(d)(1) and SG §§10-617(d)(2). AACPS has a license to operate the system currently in place. Operational manuals and related materials are clearly intended for licensee use only. You are not an AACPS employee and, therefore, not an agent of the licensee.
  • SG §10-618(a), which states that “… if a custodian believes that inspection of a part of a public record by the application would be contrary to the public interest, the custodian may deny inspection…” AACPS believes that dissemination of operational materials regarding the email system would, in fact, be contrary to the public interest. The circulation of said material to those who have no legitimate need to view it in order to operate the system opens the possibility that proprietary information will be divulged, therefore exposing the school system and taxpayers to financial liability, something that is clearly not in the public interest.

Pursuant to SG §10-623, in the event you disagree with any determination regarding this Maryland Public Information Act request you may seek judicial review by filing a complaint with the Circuit Court in Anne Arundel County.

Sincerely,

Bob Mosier
Public Information Officer
Anne Arundel County Public Schools

 

From: Mosier, Bob
Sent: Friday, June 27, 2014 2:29 PM
To: J.H. Snider
Subject: RE: Public Information Act Request

June 27, 2014

Dear Mr. Snider:

This letter is in response to your request for information under the Maryland Public Information Act (the Act), State Government Article (SG) §§ 10-611, et seq., received by Anne Arundel County Public Schools. In your request, you are seeking calendar entries and emails from the emailboxes of several AACPS employees.

As has been repeatedly communicated to you in the many previous requests in which you have sought emails, our operational standard for e-mail retention is 30 days. Messages deleted by individual users are backed up to tape media each night. The tape rotation covers a 30-day period. Individual mailboxes can be restored from tape backup for that time period only.

In your 16-item request, 12 of the items ask for emails to or from AACPS employees. Of those 12, 11 contain date ranges that fall well outside the 30-day window and, therefore, require restoration of emailboxes. Given that you took the time to offer three options to research and compile applicable emails, AACPS has chosen your “preferred search method”: centralized email backup.

As you are certainly aware, SG §§ 10-621 (b) allows a custodian to “charge a reasonable fee for search for, preparation of, and reproduction of a public record.” Under the provisions of the Act, the first two hours of labor would be provided free of charge. You would be responsible for reimbursing Anne Arundel County Public Schools for the labor required to complete all other research and compilation of documents.

Again, as you have been repeatedly informed, the Technology Division estimates the time involved in restoring an emailbox to be 1.5 hours. The hourly rate of pay for the employee who would restore the emailboxes is $47.26. Therefore, the amount of reimbursement required from you for this portion of fulfilling your request would be $212.67.

Emails found to fall within the scope of your request would then have to be examined to determine if they are disclosable under the Act. They may also have to be redacted as allowed under the Act. Given the variety of date ranges in your request and the uncertainty as to how many emails may exist and that meet the criteria you set forth, it is impossible for AACPS to state with specificity the amount of time that would be needed to examine these emails. Yet, AACPS is compelled under the Act to provide you with an estimate, so we will assume for the sake of that purpose that two hours would need to be allotted per mailbox for a total of six hours.

The hourly rate of pay for the employee who would examine the emails to ensure they are disclosable is $72.15. Discounting the two hours of labor allowed free under the Act, the amount of reimbursement required from you to research and compile the information using the above-described method would be $288.60. Again, this is purely an estimate for the purposes of this calculation. This amount would be adjusted higher or lower depending on the actual time expended in this effort.

In addition, AACPS estimates it would take approximately 1 hour to research and compile materials related to item (I) in your request. That work would be done by an employee with an hourly rate of $72.15.

Given the above, the amount of reimbursement required from you is estimated to be $573.42.

As provided in Administrative Regulation KI-RA, “Where the cost estimate is likely to be $50.00 or more, AACPS will require a deposit of 75 percent of the estimate before initiating any research, preparation, and compilation.” Given that, the total amount of reimbursement required by you is $430.06.

In addition, Anne Arundel County Public Schools Administrative Regulation KI-RA states that “AACPS will charge a fee of 25 cents per page for documents that exceed 10 pages.” Electronic documents will be provided in cases where they exist.

Attached to this email are documents fulfilling three portions of your request: calendar entries for employees Sarah S. Pelham and Aimee Poisson as they currently exist on our system; and an email sent to Ms. Pelham, Ms. Poisson, and Teresa Tudor regarding your request.

I will need further communication from you as to how you wish to proceed with the above items before acting further on this request. Please contact me at 410-222-5312 or at rmosier@aacps.org.

Pursuant to SG §10-623, in the event you disagree with any determination regarding this Maryland Public Information Act request you may seek judicial review by filing a complaint with the Circuit Court in Anne Arundel County.

Sincerely,

Bob Mosier
Public Information Officer
Anne Arundel County Public Schools
Phone: 410-222-5312

 

From: J.H. Snider
Sent: Monday, October 06, 2014 12:05 PM
To: Mosier, Bob
Subject: RE: Public Information Act Request

Dear Mr. Mosier:

In my August 7, 2014 Public Information Act request, I requested e-mail correspondence for Aimee Poisson for two time periods:

1)    All emails for Aimee L. Poisson from February 13, 2012 to February 20, 2012

2)   All emails for Aimee L. Poisson from January 13, 2014 to February 21, 2014

On August 15, 2014, you wrote: “With regard to this request, AACPS estimates it will take approximately four hours to research and compile email documents from the computer of Aimee Poisson for the date ranges you specify.”  You then go on to request a deposit of $254.98 to conduct the search, with a balance of $85.00 to be paid after the search was complete, for a total of $339.98.  In reply, I sent you a check for $254.98 postmarked on August 16, 2014.

On September 5, 2014, you said the documents had been searched and that I would have to pay the $85.00 to receive them.  There was no mention that Aimee Poisson had deleted the emails from February 13, 2012 to February 20, 2012 and that this part of my request could thus not be fulfilled.  You wrote: “As provided in the estimate emailed to you on August 14, 2014 [sic], the research and compilation of documents from the computer of Aimee Poisson for the date ranges you specified took four hours….”  In reply, I sent you a check for $85.00 to cover the balance.

In your September 9, 2014 reply acknowledging my payment of the balance, you claimed to provide me with all the requested documents.  Your wording was: “This completes your request.”  Thank you again for responding to me within the 30 days specified by law.

February 13, 2012 to February 20, 2012 Emails

But you didn’t send me any emails related to the request I made for emails between the dates of February 13, 2012 and February 20, 2012.  Nor was there any acknowledgment between August 7, 2014 and the receipt of my payments that A) Aimee Poisson had deleted those emails for that period, and B), if so, Aimee Poisson’s physical files and other email repositories used for AACPS correspondence had been searched for the relevant missing emails.  This is akin to a customer paying for a Tesla Motors Model S car (they cost about $100,000) and receiving shipment of a toy version of that car.  It’s breathtaking that you would attempt to get away with playing such a game, but we both know that Maryland politics and its Public Information Act richly reward such behavior.

Please fulfill the Public Information Act request that I actually submitted to AACPS.  If Ms. Poisson deleted the relevant emails (I know that she sent and received many emails between February 13, 2012 and February 20, 2012), please say so.  According to Ms. Poisson’s emails from 2014, she uses four computers for AACPS email correspondence, including a home computer, work computer, iPad, and Verizon smartphone.  Please confirm with Ms. Poisson that she deleted the relevant email archival file from all four of her computers and that she has kept no physical copies of the relevant emails.  Unless Ms. Poisson confirms that she has not deleted such files, there is no point in searching because she could easily delete or transfer them at any point in time and would face no penalty from AACPS for doing so.  Indeed, I’d expect you and other AACPS officials to applaud her for trustworthy service for deleting sensitive information.

January 13, 2014 to February 21, 2014 Emails

For my Public Information Act request for emails from January 13, 2014 to February 21, 2014, my request was partially fulfilled but included highly material omissions, including no attachments, missing emails, and highly questionable redactions.  The reasons for the omissions were not stated, so can only be presumed.

Let me start with the generous premise that you are unfamiliar with the guiding principles behind the Public Information Act.

The Maryland Public Information Act provides that “[a]ll persons are entitled to have access to information about the affairs of government and the official acts of public officials and employees.” Maryland Code (1984, 2009 Repl. Vol., 2012 Supp.), § 10-612(a) of the State Government Article.

In numerous cases, Maryland courts have reiterated that “the provisions of the Public Information Act reflect the legislative intent that citizens of the State of Maryland be accorded wide-ranging access to public information concerning the operation of their government.” Kirwan v. The Diamondback, supra, 352 Md. at 81, 721 A.2d at 199 (internal quotation marks omitted). See also, e.g., Montgomery County v. Shropshire, 420 Md. 362, 375, 23 A.3d 205, 213 (2011); Ireland v. Shearin, 417 Md. 401, 408, 10 A.3d 754, 758 (2010); University System v. Baltimore Sun, 381 Md. 79, 87-88, 847 A.2d 427, 432 (2004); Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 73, 716 A.2d 258, 262 (1998); A.S. Abell Publishing Co. v. Mezzanote, 297 Md. 26, 32, 464 A.2d 1068, 1071 (1983).

While the Public Information Act makes access to government information generally available to the public, it also shields some government information from disclosure.  Over many years, I have repeatedly asked you to explain why you exempt certain information from disclosure.  During that period, you have rarely cited the specific exemptions you have used.  Merely citing the Public Information Act is inadequate.  Once again, you have liberally used exemptions with minimal explanations or incorrectly.  Here is the written guidance, Responding to Requests Under the Maryland Public Information Act, from Attorney General Doug Gansler to Public Information Officers:

(ii) If you determine that the records are to be withheld in whole or in part, promptly send the requester a letter explaining why those records are exempt from disclosure, citing legal authority and telling the requester how to seek review of your decision.

On its website under the heading What is the Public Information Act? the Office of the Attorney General provides similar advice to requesters.

If an agency denies all or part of your request, it must provide you with a written explanation that includes the reason for the denial, the legal authority justifying the denial, and your appeal rights.

Exemptions Under the Family Educational Rights and Privacy Act

Here I’ll focus on the one specific exemption you mentioned: the Family Educational Rights and Privacy Act.  That law protects the privacy of student education records.  But I believe it is at least partially and possibly completely misapplied in this context.

What we have here are students using government resources to lobby the state legislature.  Moreover, the goal of the joint lobbying effort by the students and AACPS staff was to argue that students, especially the SMOB and the students who elect the SMOB, should have the same political rights as adults.  In making this political argument, the students must accept the adult responsibilities that come with stewardship over public resources.  They—and AACPS staff—cannot have it both ways.  The authors of FERPA most certainly did not have in mind that the law would be used as a shield from public accountability when government staff sought to use government resources to engage in a secret grassroots lobbying campaign employing students and parents.

You might take some pleasure in knowing that, according to a white paper by the Student Press Law Center, the AACPS Public Information Office isn’t the only government office that misuses FERPA.  The Student Press Law Center represents student journalists.  Here is an excerpt from its white paper:

The clash between student privacy interests and the public’s right to newsworthy information about the workings of schools and colleges can be a frustrating one for journalists at all levels. Many of the arguments raised against disclosure of government records turn out to be based on myths and misunderstandings about what are – and are not – confidential student records.

A 1974 federal law, the Family Educational Rights and Privacy Act (“FERPA”), requires schools to enact and enforce policies to safeguard the confidentiality of students’ “education records.”  Virtually every court that has been asked to define “education records” has applied a limited and commonsense understanding of the term, like this definition by a Maryland appeals court:

[FERPA] was not intended to preclude the release of any record simply because the record contained the name of a student. The federal statute was obviously intended to keep private those aspects of a student’s educational life that relate to academic matters or status as a student….

The Owasso case is especially significant for those seeking records from student government associations or similar student organizations. Although some student governments have attempted to claim that their correspondence and meeting records are confidential unless every participant executes a FERPA waiver, there is no reason to think this is the case. Records created by students and kept by student organizations are not records of the educational institution, and under Owasso, they should be exempt from FERPA….

When FERPA has been raised as an obstruction to journalists’ requests for public records, the courts have overwhelmingly applied a narrow, common-sense reading of FERPA that covers only academic and disciplinary records, or records of that nature, that directly identify students. Nonetheless, many schools and colleges continue operating under the oversimplified shorthand that if a document names or refers to a student, it is a FERPA record, without exception.

Don’t misunderstand me:  I support 1) student election of the Student Member of the Board (SMOB), 2) a SMOB with full voting rights over the $1 billion plus AACPS budget and some 10,000 employee, 120+ public schools, and 79,000+ full-time students, and 3) the students’ right to lobby the legislature.  But the public has a right to understand how the students exercise those substantial rights, especially when government resources are used in their exercise.  FERPA was never intended to undermine that public right.

Missing Attachments

The most notable omission in what you sent me in response to my Public Information Act request was the complete omission of attachments.  From my perspective, the attachments were of greater interest than the emails.  It is striking that in the fulfillment of my previous similar Public Information Act request for Sarah Pelham’s emails, you included attachments as a matter of course (in that case, they were unrelated to the purpose of my request).  This time you excluded the attachments without explanation.  I am especially interested in any attachment related to the lobbying over SB194.  Again, I consider these to be the most important documents in my Public Information Act request.

Missing Emails

There are also obviously missing emails.  For example, on January 16, 2014 at 4:32 pm Ms. Poisson wrote to a redacted correspondent: “I am confused and have not slept in a bit… please disregard my previous email.  [blackout] we did not assign you anything.  I have lost my mind….  Sorry.”

But there is no previous email in the record.  The email was sent to: and cc’d to multiple blacked out individuals.  The email is especially noteworthy because it was sent out one day after Senator Reilly introduced SB194, which was the subject of the grassroots and elite lobbying campaign she helped organize.

Another possible set of missing emails was to Jessica S. Cuches, AACPS Legislative and Policy Counsel, who, along with Sarah Pelham, was part of the Superintendent’s Executive Team.  Ms. Cuches was the counsel who guided the legislative lobbying strategy implemented by Ms. Pelham and Aimee Poisson.  Of course, being a sophisticated lawyer, it is quite possible that Ms. Cuches chose to do most of her communications in a way that wouldn’t leave a public record.

Of course, the lack of an email may have been the result of poor procedure rather than an omission.  For example, I would imagine that Ms. Poisson would confirm in writing the cost of the bus to transport students to the General Assembly, which presumably came out of her budget.  She personally booked the independent bus contractor to take her student minions to and from the General Assembly to lobby on SB194 (students are not allowed to drive to the General Assembly on their own without AACPS supervision).  But there is no record of such confirmation in her email.  Of course, it’s possible that confirmation may have been done via fax or another AACPS office.  Similarly, I would imagine that there would be some confirmation in writing of the room at the State House that AACPS reserved for coordinating the lobbying on SB194.

As an aside, similar omissions occurred in the emails provided by Ms. Pelham.  This was confirmed by the fact that many of the emails she claimed she didn’t have in any of her email files were included in the correspondence to and from her in Ms. Poisson’s emails.  Indeed, the attachments, such as student testimony, were also cc’d to Ms. Pelham for her approval.

Missing Names and Email Addresses

Another category of notable omissions were the blacked out redactions of names and email addresses.  It is, of course, difficult to know what one doesn’t know.  The fact that Ms. Poisson appears to have often sent grassroots lobbying solicitations and instructions to more than a hundred individuals at a time (e.g., see January 27, 2014 at 4:17 pm) makes it especially difficult.  But it is clear that the blacked out redactions include some of the following:

1)    Else Drooff, the SMOB.  I believe that a student school board member who has the same rights and compensation as adult school board members should not be exempt from the Public Information Act when acting in her official capacity.

2)    Kara Ritterspusch, CRASC President.  The CRASC President has substantial control over government resources, including school buses, meeting space, and staff.  Under Maryland statute, the President is also one of three individuals to nominate the three candidates for SMOB that student representatives are allowed to vote for.  She also should not be exempt from the Public Information Act when acting in her official capacity.

3)    Christian Hodges, State SMOB and former CRASC Vice President.  The State SMOB represents more than 1 million students across the State of Maryland.  He has the same voting rights as the adult members of the State Board of Education on all matters except appeals and personnel disputes.

4)    Other students with a government e-mail address acting in their official capacity.  For example, the Montgomery County SMOB uses a Montgomery County Public School Systems email address.  Although such SMOBs may have only partial voting rights, they should also be covered under the Public Information Act when acting in their official capacity.  Similarly, although the names of individual advisors in other Maryland public school districts appear to be included, they may have been redacted when sent as a group, perhaps because they included email addresses rather than names.

5)    All government staff, whether they work for the Anne Arundel County Public Schools or not, should not be exempt from disclosure when using a government resource to lobby.  The fact that they may have used a personal email address in their lobbying should not exempt them from the Public Information Act.

6)    Unspecified authority figures for Ms. Poisson.  For example, on January 28, 2014 at 3:44  pm, Ms. Poison forwarded the SMOB’s final testimony to some individual whose name is blacked out.  There is no accompanying message.  It doesn’t appear that she was sending the testimony to the SMOB.  My guess is it was being forwarded to one of the AACPS staff members helping edit the student testimony.  Sixteen minutes later, at 4:00 pm, she sent the SMOB’s testimony to another blacked out individual with the recipient’s name blacked out and only “stuff” in the subject line.  Also at 4:00 pm, Ms. Poisson responded to some written testimony by sending the following message to a blacked out party: “Call please.  I am drowning in a sea of crap.”  Ms. Poisson is presumably writing to one of the AACPS staff assigned to help her in the editing process.  I doubt Ms. Poisson would plead for help this way from the CRASC executive staff, her “bambinos” and “minions.”  Thirteen minutes later, at 4:13 pm, she responded to another blacked out recipient: “I am panicking here.”  Again, that sounds like an email sent to a colleague, not one of her students.

Perhaps you are not aware of a 2013 Maryland court ruling concerning the illegality of email address redaction.  The case was brought by the Washington Post, Baltimore Sun, and other Maryland area newspapers and was funded by a Knight Foundation Freedom of Information grant.  The court ruling received national attention in the open government community and was summarized by the National Freedom of Information Coalition.

Of course, as I’ve said, I don’t know what I don’t know.  The Public Information Act presumes that you will act in good faith in responding to my Public Information Act request.  In your response, I hope you will act so as to justify the faith the authors of that act placed in you.

Please fulfill my August 7, 2014 Public Information Act request.  Today marks the two-month anniversary since I submitted it to you.

Sincerely,

J.H. Snider