After Pledge Of Sunlight, Gov. Cuomo Officials Keep Their Email In The Shadows

from the transparency-is-only-for-when-you're-trying-to-get-elected dept

Adopting a tactic that has been used by officials ranging from Sarah Palin to staffers of New Jersey Gov. Chris Christie, aides to New York Gov. Andrew Cuomo are sending emails from private accounts to conduct official business.

I know because I got one myself. And three other people who interact with the governor's office on policy or media matters told me they have too. None of the others wanted to be named.

The tactic appears to be another item in the toolbox of an administration that, despite Cuomo's early vows of unprecedented transparency, has become known for an obsession with secrecy. Emailing from private accounts can help officials hide communications and discussions that are supposed to be available to the public.

"Government business should never be conducted through private email accounts. Not only does it make it difficult to retrieve what is a government record, but it just invites the suspicion that a government employee is attempting to evade accountability by supervisors and the public," said Christopher Dunn of the New York Civil Liberties Union, a frequent requester of records under the state's Freedom of Information Law.

Emailing from private accounts also may violate state policy. State employees are not to "use a personal email account to conduct State business unless explicitly authorized," according to a policy bearing the governor's name published by the Office of Information Technology Services.

The Cuomo administration declined to comment on whether any employees are authorized to use private accounts.

Back when he was running for governor, Cuomo pledged, "We must use technology to bring more sunlight to the operation of government."

The governor himself uses a Blackberry messaging system that does not save messages to communicate with aides, the Daily News reported in 2012. Under the Freedom of Information Law, those records would typically not have to be released because there is an exemption for internal deliberative material.

But emails with anyone outside of the administration – such as lobbyists, company executives, or reporters – usually have to be made public upon request. It is for those communications, with people outside the administration, that private email accounts have been used.

Last year, I was poking around on a possible story and filed some public records requests that sought emails from Director of State Operations Howard Glaser, a top Cuomo adviser. One day in October, just hours after filing a request with the governor's office, an email appeared in my inbox from Glaser himself.

The email, inquiring what I was working on, was sent from a @glasergroup.net address rather than a government account. The note had a signature line about not using the email address for official business (even though it appeared to be doing just that). My interest was piqued.

So I filed a request under the state's Freedom of Information Law, asking for all records sent to and from Glaser's private account. It is not supposed to matter if an email is sent from an official account or a private one: If it pertains to government business, it typically has to be released.

A couple of months later, the Cuomo administration responded with a terse denial: "Please be advised that the New York State Executive Chamber has conducted a diligent search, but does not possess records responsive to your request."

I appealed, noting that I had in my possession a record responsive to the request – Glaser's email to me – and included it as an attachment.

The administration upheld its original denial, now citing a retention issue.

"[T]he fact that this record is in your possession does not mean that the Chamber failed to produce a responsive record in its possession. Emails and certain other correspondence are not required to be preserved indefinitely," the March letter said.

When I asked about the email this month, Cuomo spokesman Rich Azzopardi took a different tack, now disputing that Glaser was emailing me in his official capacity at all and calling the email "informal." "It would be inaccurate to characterize Howard's email as official business – as he noted, your official business was being handled by the FOIL office, not him," Azzopardi said.

But I have no personal relationship with Glaser, and my Freedom of Information Law requests focused only on his activities as a state official. When I recently asked Glaser about his email practices, he said, "I don't use personal email to conduct official business." He would not say how he defines "official business."

In its letter denying my request for emails from Glaser's private account, the administration cited the general retention policy of the State Archives. That policy says that "many email communications are not records and are therefore suitable for immediate destruction" but also that those emails which are records must be preserved.

So how does one determine which emails are "records"?

The governor's office seems to take a particularly narrow view. The governor's policy says that emails are only "records" if they are formal documents like press releases and nominations. Azzopardi, the Cuomo spokesman, said: "Official email is not required to be retained unless it meets the definition of a particular kind of record (eg – contract), consistent with the State Archives policy."

But the Archives, which Cuomo's office itself cited, takes a more expansive view, even as state law gives the governor leeway to determine which records should be kept.

Quoting the official definition of records, Archives spokeswoman Antonia Valentine said an email is a record if it is created "in connection with the transaction of public business (and provides) … evidence of the organization, functions, policies, decisions, procedures, operations, or other activities (of an agency)."

In practice, Glaser seems to be either eschewing his official email account or promptly deleting messages of substance. When I asked for a 10-day sample of emails from Glaser's official account, I got back little actual communication: 147 pages that are largely filled with newsletters, press releases, and the occasional terse email to set up a phone call.

The use of private accounts can result in even more roadblocks when an official leaves the government. (Glaser is reportedly leaving the administration in June.)

The issue has come up before.

In 2007, executives from the insurance giant AIG filed a public records request with the Office of the Attorney General, seeking, among other things, former Attorney General Eliot Spitzer's communications with the press from the period when he had sued the insurance giant. That request was resisted for years by Spitzer's successor as attorney general: Andrew Cuomo.

While Cuomo's office eventually released emails sent from official accounts, it maintained that Spitzer's use of a private account put any of those emails beyond its reach.

"[T]he reality is that the Office of the Attorney General lacks access to this account and possession of whatever e-mails it may contain, thus rendering them beyond the scope of petitioner's FOIL request both practically and legally," Cuomo's office said in a 2009 court filing.

A judge ruled against the attorney general's office, which has appealed. Seven years since the original request, the case is still in the courts and Spitzer's private email account – which he was known to use in his capacity as a state official – has never been searched for records.

Lawyers for Spitzer joined the case this year, arguing in a March filing that because Spitzer is now a former employee and a private citizen, the Freedom of Information Law doesn't apply.

Beyond the governor's office, the state is reportedly moving toward an email system that would automatically delete emails after 90 days except for those marked by users to save.

It's not clear how that process would work or how the state will ensure that records are not destroyed. The Office of Information and Technology Services declined to provide the memo describing the new policy, requiring that I file a formal public records request to get it.

Transparency advocates have criticized 90 days as too short a period because emails may only become relevant months later after a scandal or other event.

A document on the IT office's website references the possibility in a state email system for "recovery of deleted mailbox contents for the length of the retention period" – another capability that would not exist for officials using private accounts.

Across the river in New Jersey, private email accounts are at the center of the Bridgegate scandal.

The infamous "Time for some traffic problems in Fort Lee" email was sent from a Christie aide's Yahoo account to another official's Gmail account. That tactic held off public access to the email for a time.

In December, the Christie administration claimed it did not have records in response to a request from the Record of Bergen, N.J. The emails became public later, only after the officials were subpoenaed by the state Assembly.

If you have gotten emails from the private account of an official in the governor's office or other state or city agencies, email me at justin@propublica.org.

Reposted from ProPublica via its Creative Commons (BY-NC-ND) license.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    zip, May 6th, 2014 @ 1:13am

    "nom de guerre" or 'sockpuppet'?

    Hopefully these government officials are at least using their real names on email:

    Richard Windsor never existed at the EPA, but the agency awarded the fictional staffer’s email account certificates proving he had mastered all of the agency’s technology training — including declaring him a “scholar of ethical behavior,” according to documents disclosed late last week. Windsor.Richard@epa.gov was the controversial email alias used by former Environmental Protection Agency Administrator Lisa Jackson


    http://www.washingtontimes.com/news/2013/jun/2/newly-released-emails-show-epa-directors-exten sive/?page=all

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    AC, May 6th, 2014 @ 2:34am

    90 days?

    Every time the government wants ISPs to maintain public emails, it's usually between 1-2 years. When the government decides its own email retention, it's 90 days.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, May 6th, 2014 @ 3:38am

    They should be required to keep this information for ... seven years.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, May 6th, 2014 @ 3:50am

    A government official using personal emails to communicate should find their personal emails publicly available and subject to FOIA request and the same data retention policies as the "official" email accounts.
    This tactic shouldn't shield their communicates, it should open them all up to the public.

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, May 6th, 2014 @ 3:52am

    Cuomo needs to be shot out of a cannon for blatant hypocrisy. Preferably without a crash helmet, but I don't mind either way.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, May 6th, 2014 @ 4:56am

    Don't worry. The NSA still has copies.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, May 6th, 2014 @ 5:33am

    Don't get too upset by these type of officials in our gov.

    They will all be against the wall eventually.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    art guerrilla (profile), May 6th, 2014 @ 5:53am

    um, did you see the oligarchy article ? ? ?

    if so, then we have confirmed what we've actually KNOWN down to our bones for quite some time: the 1% get their way, and the 99% get to pay...
    THAT is how The System is set up, and that IS how it works...
    to expect otherwise at this point is childish; what to do about it is the question...

    (hint: power NEVER devolves voluntarily... NEVER)

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    timmaguire42 (profile), May 6th, 2014 @ 6:26am

    Re: "nom de guerre" or 'sockpuppet'?

    The partisanship that is starting to creep into Techdirt articles is annoying, from Tim Geigner and his stupid Global Warming posts to now this.

    The most damaging cases of public officials using private emails are all Democrats, but somehow Justin can only think of Republicans for his examples, one of them entirely made up. There's no evidence Sarah Palin used private email accounts to conduct official business and the article Justin links to doesn't accuse her of it.

    Enough with the partisan politics bullshit, Techdirt should stick with what it does best.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, May 6th, 2014 @ 6:37am

    The tactic appears to be another item in the toolbox of an administration that, despite ______'s early vows of unprecedented transparency, has become known for an obsession with secrecy.

    Government Madlibs: Insert name of current government official.
    Promises of using technology to be more open and then trying their hardest to figure out how to hide everything. This is the usual.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Baron von Robber, May 6th, 2014 @ 7:14am

    Re: Re: "nom de guerre" or 'sockpuppet'?

    "The partisanship that is starting to creep into Techdirt articles is annoying, from Tim Geigner and his stupid Global Warming posts to now this."

    The only thing stupid is denialism.

    "The most damaging cases of public officials using private emails are all Democrats, but somehow Justin can only think of Republicans for his examples, one of them entirely made up. There's no evidence Sarah Palin used private email accounts to conduct official business and the article Justin links to doesn't accuse her of it."

    Oh I see some political partisan bullshit!

    "Enough with the partisan politics bullshit, Techdirt should stick with what it does best."

    Doh, you stressed my Iron-O-Meter.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    Josh (profile), May 6th, 2014 @ 7:15am

    private company

    If a private company tried to setup an auto delete system for email contacts, they would be strung up by the government and run out of business.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Baron von Robber, May 6th, 2014 @ 7:51am

    What it should be

    All phones in politician offices should be recorded with an automated speech-to-text system. Every night, transcripts are posted to a public website.

    It'll never happen, but it's a nice dream

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    Mason Wheeler (profile), May 6th, 2014 @ 11:17am

    Re:

    Shouldn't that be "life + 70 years"? ;)

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    Anonymous Coward, May 6th, 2014 @ 5:25pm

    Technical Difficulties

    About 15 yrs. ago, a friend who worked in the Unemployment Servies in SC had to use his personal email, because the state email filtered out citizens' emails using adult filters, so he couldn't even get them.

    I have read that hundreds of people in a given agency had to bring their own computers to work, as the gov. system was so antiquated some years back. Don't know how it is now. Judging from the Obamacare rollout, not much has changed.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    BeeAitch (profile), May 6th, 2014 @ 7:11pm

    Re: Re: "nom de guerre" or 'sockpuppet'?

    The partisanship that is starting to creep into Techdirt articles is annoying,
    .

    Then go away.

    Begone.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Pragmatic, May 7th, 2014 @ 5:48am

    Re: Re: Re: "nom de guerre" or 'sockpuppet'?

    The alleged partisanship exists in the comments. Thankfully we're not all party to it.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Pragmatic, May 7th, 2014 @ 5:48am

    Re: Re:

    As Mason said, it's all copyright now...

     

    reply to this | link to this | view in thread ]


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