Half a Loaf Is Still a Chunk of Bread

Political gadfly Andree McLeod sued Governor Parnell over The Quitter’s use of private email to conduct state business. The various books and exposés of The Quitter’s half term governorship have clearly established that The Quitter used private email to hide her misconduct from the public. There may not be admissible legal evidence, but it’s not in serious dispute. McLeod sought to get those private emails under the Public Records Act and to have use of private email for official business declared to be an automatic violation of Alaska public records laws.

None of this is exactly news: the process of providing The Quitter’s emails to the public took years, remains incomplete even today and what has eventually been produced is swiss cheese: full of holes that smell funny.

But McLeod’s lawsuit went to the Alaska Supreme Court, and it issued an opinion last  Friday. And decided that McLeod had won. Or at least won half a loaf.

It requires a close reading of the decision to understand how victory was snatched from the jaws of defeat. Justice Carpeneti, writing for a unanimous court, held that private emails involving state business were “public records” and should be preserved. In other words, The Quitter, the First Spouse and members of her administration could not evade the scope of the Public Records Act by conducting state business by private emails.

Justice Carpeneti declined to find that the use of private emails for public business was a per se – automatic – violation of the Public Records Act. However, he found “McLeod established that the duty to preserve emails exists as to both official accounts and private accounts, and that the duty cannot be extinguished by a public official’s unreviewable decision simply not to preserve them.”

Obviously, this is only half a loaf. While public business conducted by private email creates a public record, there are serious practical problems with tracking down those emails. McLeod didn’t raise those issues – or at least the court fond she hadn’t – and the court wasn’t about to volunteer. And the Alaska Supreme Court has only belatedly reached email, a decades-old technology. Tweets and text messaging remain legal terra incognito. The law has never been very good at keeping up with technology.

But props to Ms. McLeod. And to her attorney, Don Mitchell. Sometimes simple stubbornness can accomplish what reason and logic cannot. And maybe, now that the dust has settled, the Alaska Legislature can simply ban use of private email for state business.

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