During the 2016 legislative session, eight Republican members of Maryland’s General Assembly introduced legislation in the House and Senate to rectify that omission. But Republican Gov. Larry Hogan 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, held by Democrat Brian Frosh, routinely corresponds with local government officials via their private email addresses. His 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 uses private email for government business, including in correspondence with his staff and appointees to county commissions. Senior public school officials 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.
Consider an assistant superintendent who orchestrated a lobbying campaign to influence Maryland General Assembly legislation on behalf of the school system. A Public Information Act request asking her for known responsive emails generated none. The school system provided no acknowledgement or explanation for the missing emails.
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: not only is there no email retention requirement, but even if there were such a requirement it would be unenforceable. Unlike 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 the news of 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. Maryland’s 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 email secrecy.
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 controversial 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 public record is there any chance of them fixing the problem. Sure, they will have strong incentives to lie or otherwise 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 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.
J.H. Snider, president of iSolon.org, regularly writes about issues of democratic reform.