Organizations in both the private and the public sectors struggle with the knotty problems of records management: which documents to retain as records, and for how long; which records to destroy, and when. And many of these organizations, barely able to get a handle on their records back in the days when most of them were paper, are really struggling, now that the vast majority of those records are electronic – and the various repositories where those electronic records might be lurking are multiplying like the proverbial rabbits.
Government organizations are under a particular burden: a responsibility to the citizenry they serve to make their information available to the people. It’s called transparency, and the fact that so much information is now stored in electronic formats is a victory for advocates of open government. Search capabilities, for instance, allow constituents to easily identify information on a subject of concern for purposes of a Freedom of Information Act (FOIA) request. And digitized records can be accessed from any location, making it far easier to research that subject of concern.
That’s the theory, anyway. But it assumes the records have been preserved in the first place – which, depending on the state you live in, may not be the case.
Take Massachusetts, for example. As first reported by the Boston Globe, when Mitt Romney left office as governor at the end of 2006, he received permission for his aides to buy the hard drives from their state office computers for $65 apiece, and then to spend $97,000 of taxpayer money to replace computers and to wipe clean the servers, including the one in which the governor’s office emails were stored. On top of all this they also received what Reuters terms “legal permission” to destroy 150 boxes of paper records from his term of office.
In effect, Romney’s people were able to take with them all government emails and other electronic records from his administration.
All of this comes to light as journalists, historians, and Romney’s opponents in the 2012 Republican presidential primary campaign have been submitting FOIA requests on Romney’s term as governor of Massachusetts – e.g. requests about the genesis of the health care insurance mandate Romney enacted in Massachusetts. Surprise, surprise: Most of those requests are coming up empty, because the Romney people either cleaned out or took the information with them when they turned out the lights.
As reported by MSNBC, a spokesperson from the Romney campaign says that Romney “followed precedent in the handling of documents in his office….It was all done in accordance with the law, and approved by an independent board overseen by the Democratic Secretary of State.” Technically, this is true; a 1997 decision by the Massachusetts State Supreme Court asserted that records generated by the governor’s office are not public records under state law.
But maybe the operative precedent is one that not just Romney, but many officeholders are looking to avoid – i.e. the case of Massachusetts Senator John Kerry. Back in the early 1980s, Kerry dutifully deposited in the Massachusetts State Archives all the records from his term as Massachusetts Lieutenant Governor. These records were then exploited by Kerry’s various political enemies – both during his subsequent Senate races and his Presidential run. Kerry’s experience appears to have been a lesson learned for many politicians who would rather not face that kind of scrutiny themselves, or provide that kind of fodder for “oppo” research, in future election cycles. Accordingly, legislatures in many states have passed laws exempting their members from state and federal records laws, effectively making legislators’ records out of bounds for FOIA requests.
Yes, Romney and his people violated no state laws or policies. But to the average Joe, an assertion like this doesn’t pass the smell test. Why aren’t these electronic records part of the public record? Mark Feldstein, formerly an investigative journalist and now a professor of broadcast journalism at the University of Maryland, interviewed by MSNBC, said pointedly, “These records don’t belong to Mitt Romney or his staff. Those computers were paid for by the taxpayers, and they were working on taxpayer time.”
The issue is raising some questions in Massachusetts as to whether it might be time to revisit state laws on the management and disposition of official records – laws which, Massachusetts officials acknowledge, have not been updated in years and which address electronic records in only a very limited way. In fact, the vast majority of state laws regarding preservation of electronic information are out of date, according to the Reporters Committee for Freedom of the Press.
The question is whether this episode will be no more than a kerfuffle on the 2012 Presidential campaign trail, or whether the public will begin to demand greater transparency on the part of the officials they elect to public office.
But finally, you have to wonder, too, as does Feldstein, just “how historians are going to write the history of our times, if so much is on email and so few emails are preserved.” In the past, public officials archived their papers and restricted the access. But blowing away your hard drives and wiping your servers clean when you leave office? There oughta be a law – against it.