Palin Email Dump A Prelude To Battle Over Private Messages

Then-Gov. Sarah Palin gives her  State of the State speech to the Alaskan legislature, Jan. 15, 2008. i i

hide captionThen-Gov. Sarah Palin gives her State of the State speech to the Alaskan legislature, Jan. 15, 2008.

Chris Miller/AP
Then-Gov. Sarah Palin gives her  State of the State speech to the Alaskan legislature, Jan. 15, 2008.

Then-Gov. Sarah Palin gives her State of the State speech to the Alaskan legislature, Jan. 15, 2008.

Chris Miller/AP

As Alaska officials release 24,000-plus pages of emails sent and received by then-Gov. Sarah Palin during her half-term in office, at least one person is viewing the spectacle as something of a yawn.

"My prediction is that you will find that, after all this commotion, it will be a bunch of nothing," says Anchorage lawyer Donald Mitchell.

The state, after all, is withholding close to 3,000 sensitive emails — "the ones you really want to read," Mitchell says — and is redacting portions of others.

But, more to the point, the emails released Friday include only those that passed through and were captured by the state's computer servers, whether sent from an official state account or a private email account.

What will be missing? Palin's private Yahoo account emails that didn't go to a state email address, but to private email accounts used by a group of influential state officials.

Mitchell and Alaska activist Andree McLeod have alleged that Palin, the 2008 Republican vice presidential candidate, in an effort to circumvent state public disclosure rules, did government business on the sly via those private email exchanges.

Public Records In Alaska

  • "Public records" are broadly defined in Alaska as most anything that's part of official state business, regardless of physical form. That includes correspondence (email and physical), drafts, memos, books, maps, photos, staff manuals and more.
  • Anyone may request access to and copies of public records; access isn't limited by the reason for requesting them.
  • Public records may be requested from the executive, legislative and judicial branches. Records may also be requested from: Executives themselves (i.e. governors, mayors, etc.), groups who receive public funds/benefits, groups whose members include governmental officials, multi-state groups, and other advisory boards and commissions.
  • There may be fees for obtaining copies of records, but fees can be sometimes be waived.

Why Some Documents May Be Missing From Palin Email Release

Although the correspondence of executive officials, like the governor, qualifies as part of the public record, a number of court cases in Alaska have determined that withholding certain messages is justifiable. When done, it's called invoking the "executive" or "deliberative process" privilege. The privilege is intended to protect a decision-maker's ability to get advice and have frank discussions with advisers before deciding on a contemplated or proposed action.

To be covered by the privilege, the communication must be both:

  • "Pre-decisional," meaning it discusses an upcoming action. This communication may still be protected even after the action has occurred and/or time has passed.
  • "Deliberative," meaning it contains back-and-forth dialogue that includes opinions, recommendations or advice.

If the process is challenged, the official must describe the documents he or she wishes to withhold and why, in sworn testimony. The party requesting the documents must in turn try to prove why it's more important for them to be released. A judge makes the final decision.

Source: "Open Government Guide — Alaska," D. John McKay and The Reporters Committee for Freedom of the Press

Palin served as governor from December 2006 to July 2009.

Hackers broke into a Palin Yahoo account shortly after she was named to the Republican ticket in 2008. Email exchanges posted by the hacker allegedly involved Palin and now-Gov. Sean Parnell, lieutenant governor at the time, and a member of the state's advisory board on alcoholism and drug abuse.

"The question is whether or not those emails qualify as public records under Alaska's rules," says Mitchell, who argues they do.

The state has argued the opposite.

Mitchell and McLeod have pursued access to those private emails all the way to the state's Supreme Court, which heard arguments on the case last fall. The justices have yet to rule.

"Sunshine laws," those right-to-know provisions that regulate what information officials have to make public, differ from state to state and on the federal level.

Though executive correspondence is not shielded from the law in Alaska, it has taken nearly three years for the state to comply with requests for the emails released Friday.

That's longer than Palin served as the state's half-term governor, notes MSNBC, which is among news organizations that filed Freedom of Information requests for the release of the emails. The state also once suggested that it would charge up to $15 million for copies of the emails, more than a bit at odds with open records laws that discourage barriers, including financial ones, to public information.

The price the state plans to charge for the documents released Friday appears to be holding steady at just over $725.

McLeod, a one-time Palin ally turned harsh critic, is seen as the driving force behind the effort to force the state to make the governor's emails public.

In the summer of 2008 McLeod, in a batch of Palin emails she received through an open records request, discovered references that indicated private email accounts were being used by officials to communicate. She then began an effort to obtain those emails.

Mitchell, the Anchorage lawyer, says he has asked the Alaska Supreme Court to say that private emails pertaining to public business should be part of the public record because they were "generated by a state employee during the workday and the contents are official state business," no matter the email delivery system.

He cites a portion of the state public records law that prohibits state employers from "obstructing" the public from seeing records.

"Since no one by definition knows that the emails exist, even the state can't get access to them without a court order forcing Yahoo to release them," Mitchell argues. "If that's true, are those kinds of obstacles to the public gaining access to the documents an 'obstruction'?"

The Alaska Supreme Court may soon decide, and that day holds the promise to be far more interesting, and the fallout more profound, than anything that emerges from Friday's document dump.

There's been a steady drip, drip, drip of the Palin emails making their way to the public domain.

MSNBC in March posted emails of the former governor's husband, Todd Palin, that it had requested. The 3,000 or so pages of emails cemented the perception that "the First Dude" was intimately involved in state business. And a recent book, "Blind Allegiance to Sarah Palin," by former Palin insider and onetime state official Frank Bailey used thousands of email exchanges with the Palins to build his argument against the former governor.

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