By Dan Kennedy • The press, politics, technology, culture and other passions

About those non-public public records

It’s Day Two of Hard Drive-gate, and I’ve got a few questions.

As you may know, the Boston Globe reported yesterday that former Massachusetts governor Mitt Romney’s office let staffers buy their computer hard drives on their way out the door, and servers were scrubbed clean, meaning there are no email records from Romney’s time in office.

Anyway, here’s what I’d like answered:

  • The Globe reports that the emails are not public records, and would not be subject to a public-records request. Yet Secretary of State Bill Galvin says the emails nevertheless should have been turned over to him for filing in the state archives. Are there any circumstances under which the records could be made public? If not, isn’t this a story about nothing?
  • Why wasn’t this an issue in 2008, the first time Romney ran for president? Romney wasn’t some back-of-the-pack lightweight that year. He was the most credible alternative to John McCain. Did no one ask for this stuff back then?
  • Doesn’t Romney’s campaign have a point when it claims that the revelation may be a politically motivated attack by Gov. Deval Patrick? After all, it comes during the same week that Patrick slimed former attorney general Scott Harshbarger, the most prominent opponent of his cherished casino plan.
If Romney had destroyed public records that we had a right to see, that would be one thing. So far, though, it’s unclear whether the emails met any reasonable legal definition of public records.

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  1. Yeah, that Globe story about Harshbarger has “Patrick leak” written all over it. Funny- this week someone was laying out for me how much Patrick intervened in the Boston City Council elections. Are we sure he doesn’t want a third term?

    There’s so much scumbag to go around in MA politics.

  2. Rick Peterson

    Hey, the governor said he would bring us together. He has you and Mitt Romney on the same side of an issue. Impressive!

  3. Andy Stamer

    Sounds like politics as usual. It does sound strange that employees are able to buy hard drives and old office equipment. My questions are: why do they get this special privilege? Was this equipment paid for with tax-payer money? How much of a discount did they get?

    Romney should also get over this politically motivated attack stuff. He’s running for the highest office, and isn’t any attack when doing that politically motivated? It’s the pot calling the kettle black (or some other cliche about hypocrites).

    That said, this sounds like a non-issue or at most, and issue that has no teeth.

  4. C.E. Stead

    DK – years ago, I bought a used Compaq tower (not my own) at a sale at the MDC. It was my understanding then that these used computers were offered for sale on an annual basis as newer ones replaced old ones.

    My recollection is that it was about half of retail price, and you had to show your employee ID to participate.

    There were also tables of computer company representatives selling NEW computers, but at the ‘state’ price – in other words, you paid and your computer was added to the number already being purchased by the state at whatever price they had negotiated.

    That was more than 10 years ago, and I have no idea if the practice continues.

  5. Jerry Ackerman

    Patrick-inspired leak? Maybe. Also could be any one of many GOP people who happened to have a dime to drop. Much ado about nothing? If nothing else, today’s folo suggests that it was aberrant behavior. Were these external hard drives? Or did someone have to unbolt the box and remove what was inside?

  6. Al Fiantaca

    I have seen numerous cases where companies sell surplus equipment, and even for departing employees to acquire things, as well. What I haven’t seen before, is a case where highly placed aides and even the Lt Gov, buy, not the computers, but the data storage equipment that they worked on. It’s curious to say the least. It isn’t as if Healey was buying a nice laptop that she used, to replace an old one she has at home. The woman is a millionaire many times over, and can be a new computer with less thought than I do to buy a loaf of bread. What was the motivation?

    Did the story come from Obama supporters within the Patrick circle? Probably, but what does it matter? The larger question is why the Romney people would do it in the first place.

  7. C.E. Stead

    AL – I have no inside info, but I am willing to bet that taking a computer in that way when leaving a firm is fairly common in portions of the private sector – banking, stock trading, law firms, etc. – where you routinely deal with confidential information, especially that of others. Nothing can ever really be ‘erased’ from a computer, so if you were working on sensitive or proprietary information, it may well be SOP to retain such material in that way.

    Based on working at Bain Capital, it might seem as routine as breathing.

    And when public records had taken and archived what they wanted, and were asked if they could take the drives, they likely shrugged and said – why not? The governor’s office isn’t part of the public records request, they HAD their stuff – sure, go ahead. Nobody ever asked before…

    Some of the reaction smacks of jealousy that THEY could have had a V-8. I mean, where was Galvin’s concern for the historical record back in 2006?

  8. Michael Pahre

    Dan, I think you have misunderstood the story.

    The Globe report noted that the governor’s emails would not be public records (see SJC decision), but that says nothing about whether or not the governor’s aide’s emails are public records. Most of the hard disks in question appear to be the hard disks of the aides, not Governor Romney.

    Governor Patrick’s staff has been responsive to public records requests, but whenever the requested documents are from 2002-2006, they say that there are no responsive documents (or wording to that effect). That does not mean that the governor’s office would not have provided such 2002-2006 documents were they to exist in the records in the governor’s office. They may not be required to release the records — if they had copies in their possession — but may still choose to do so. If they did so, then, under state law, the records immediately become public records.

    Governor Patrick’s office is the “custodian” to public records in their office, but is not the custodian to public records sitting in the state archives. A request for public records from the archive likely has to be made directly to the state archivist.

    Somebody is going to get a clue soon and make a public records request to the archivist. The DNC recently got close by making a public records request to the governor’s office for all of the governor’s office emails from 2002-2006; all they have to do is fire off an identical public records request to the archivist.

    • Dan Kennedy

      Michael: You are incorrect about what the Globe reported. For instance, there is this:

      Secretary of State William F. Galvin, who oversees public records, said that while governor’s aides do not have to release e-mails to the public, they do have to preserve them for the state archives.

      Jeffrey J. Pyle, a Boston lawyer who specializes in public records cases, said, “It squarely appears that it is the policy of the Commonwealth that electronic records maintained by Constitutional officers are public property, whether they are subject to disclosure or not.” He also said the hard drives “should not have been sold as private property.”

      Today the Globe editorialized that “the relevant laws in Massachusetts aren’t strong enough to guarantee citizens the ability to see material that is produced by public officials and is clearly relevant to the public interest.” The editorial went on to say that the Romney administration “violated the spirit of the law,” which is the sort of thing you say when you realize no one has broken any laws.

      It’s possible that the Romney administration violated a law regarding turning over these records to the state archives. But since they are not subject to public disclosure, that would appear to be a rather fine distinction. Whether Bill Galvin has them sitting in his repository or not, it seems that the answer to a FOIA request to see those emails would be “no.” Although if Romney’s records were in Patrick’s possession, I imagine the answer might be “yes” — improperly so.

      Finally, in May 2011, CommonWealth Magazine reported that Galvin’s office had ruled the governor’s staff was not subject to the state’s public-records law. Of course, in that case it was to Patrick’s benefit that those records remain private.

  9. Mary Dechillo

    I served 2 terms as an elected member of the School Committee in my town from 2001-2007. The open meeting and the public records laws are two things which are essential to transparency in government, yet they remain murky in an age of advanced technology. I believe laws need to be reviewed and updated to keep up with the changes in technology.

    While every appointed or elected public board and commission at the municipal level is subject to these laws, the executive and legislative branches are intentionally exempt. Some local D.A.’ have been rigorous about enforcing not just the letter of the laws but the spirit as well. According to the open meeting laws, a quorum of a local public board such as a school committee is restricted from being in public at the same time and place, unless it is considered a “chance meeting”. They cannot meet in private session unless they publicly invoke one of the exemptions listed in the open meeting law (budget, personnel issues, legal issues, contract negotiationsa) though legislators and members of the executive branch seem to do all of their deliberating in private (with the exception of public hearings on different bills). School committee members and other local public board members cannot call one another to discuss a matter on the committee’s agenda, as that is consider “sequential deliberating”. All business of the committee is to be done in sight of the public.

    Although it is more expedient to get through a board’s agenda by having discussions of issues ahead of a meeting, the presence of open meeting laws forces the public business into the light of day. It requires public discuss by members and a dialogue with the whomever shows up at a public meeting. The make it hard for public officials to hide and to avoid being on the record.

    I was as surprised as most people to learn that a double standard between the state and local levels of government exists with regards to open meeting and public records laws. Our D.A. and our school attorney were both emphatic that written records are public property–any work product created while employed for government is the property of the government, not the employee.

    Someone please shed light on this!

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