Private email rules vary across N.C. agencies, audit shows

In this Sept. 30, 2015 file photo, a portion of an email from Hillary Clinton's private email account when she was secretary of state and released by the State Department on Sept. 30, 2015, shows an email Clinton received early in the morning on Aug. 3, 2011.
In this Sept. 30, 2015 file photo, a portion of an email from Hillary Clinton's private email account when she was secretary of state and released by the State Department on Sept. 30, 2015, shows an email Clinton received early in the morning on Aug. 3, 2011. AP

When ​Vermont Sen. Bernie Sanders faced off against Hillary Clinton at a Democratic presidential debate in October, he responded to one moderator question with an answer he admitted “may not be great politics.”

For years, Sanders’ current rival for the Democratic presidential nomination has been dogged by questions about a personal email server she used while secretary of state. An ongoing federal investigation elevated those questions into a full-blown campaign issue that has drawn the ire of both open government advocates and GOP presidential hopefuls.

Clinton had so far dismissed the issue as a partisan probe. Now Sanders, on a national stage in front of more than 15 million viewers, had his chance to weigh in.

“I think the secretary is right,” Sanders said to raucous applause from the audience and laughter from Clinton herself. “The American people are sick and tired about hearing about your damn emails.”

But for North Carolina voters, the fuss over private emails has historical relevance.

About a decade ago, Democratic Gov. Mike Easley drew sharp criticism after setting up a private email account administration staffers said was designed to circumvent public records laws. The secret Yahoo address – the name of fictional film noir detective Nick Danger spelled backwards – was eventually revealed in a public records lawsuit by several media outlets, including The News & Observer and The Associated Press.

Following federal and state investigations, Easley was convicted of a felony campaign finance violation in 2010, becoming the first governor in the state’s history to earn a conviction for crimes committed while in office.

Since then, subsequent governors Bev Perdue, a Democrat, and Pat McCrory, a Republican, have issued executive orders asserting that such emails are public records. But that’s easier said than done.

Three news organizations – WRAL News, The News and Observer and The Associated Press – asked every appointed executive agency secretary and elected member of the Council of State to provide all private emails used to conduct public business for one month in 2015. The requests were part of an N.C. Open Government Coalition project inspired by Sunshine Week, a celebration of transparency and open government.

The audit revealed that agency heads vary in their use of private email; many don’t use it at all. And although all the agencies queried agreed private email used to conduct government business is public, retrieval frequently depends on the employee whose records the public seeks.

“Email is one of the most important records we have of how government conducts its business because it shows the day-to-day business and concerns,” said Jonathan Jones, an instructor at Elon University and director of the N.C. Open Government Coalition. “Even if you have an agency that does an excellent job retrieving and maintaining its records, if one of its officials or employees uses private email, that creates a real headache for those government officials who are trying to do the right thing.”

Differing tactics with dealing with requests

Queries to several state agencies show the use of private email is a gap in public records laws aimed at allowing citizens a look behind the official curtain into what officials are doing and saying as they carry out their public duties.

Departments under McCrory’s control, from revenue to cultural resources, could not point to policies instructing how the agencies ensure private email accounts are included in searches for public records if the correspondence doesn’t pass through state-owned servers. That’s also true of Council of State offices headed by independently elected leaders like the attorney general and the secretary of state.

Agencies can’t archive data on employees’ private accounts if their messages don’t enter the state’s computer system. Instead, agencies request that potential holders of public records produce them from private accounts.

“If we were aware that an individual was using a private email account to conduct state business, we would ask them to retrieve those emails,” Department of Labor spokeswoman Dolores Quesenberry said in an email.

Agencies say they discourage using non-government paths of communications, and a section of the McCrory administration’s public records request policy states that personal emails involving state business “must be retained.” The policy recommends, but doesn’t describe any way to enforce, that such communications be printed out and filed or forwarded from the worker’s personal email account to his or her state email account for archival.

Agencies admit that policy and most other provisions depend on state employees to decide themselves what counts as the public’s business.

“The Department of Health and Human Services does not archive employees’ personal email accounts,” spokeswoman Kate Murphy wrote in an email, noting DHHS has its own policy governing use of correspondence. “If an employee uses a personal email account to conduct state business, it is the responsibility of that employee to preserve the records, either by forwarding the message to their employee email account so that it is saved on the server or printing a hard copy to keep.”

That’s also true for the secretary of state’s office, where spokesman George Jeter says the department asks employees if they have pertinent information in private emails when requests for emails are made.

“Our experience is that when someone does use private email they are typically sending, or cc’ing it to someone within our own agency,” Jeter said in an emailed response. “So, the email from the private account is archived with all our other email.”

Jeter said the secretary of state’s office doesn’t have a specific policy on private email use.

Nor does the Office of the State Treasurer Janet Cowell, according to spokesman Brad Young. He said the department’s legal and communications staff respond to document requests in part by asking workers if any private email was used and then reviewing, collecting and producing messages on requested topics.

Department of Agriculture and Consumer Services spokesman Derek Wagner said his agency lacks a formal policy governing how private emails are accessed and reviewed when responding to record requests.

“When we receive a public records request, employees know that they have to produce all records responsive to the request that relate to the transaction of public business, regardless of the location of that record,” Wagner wrote in an email. “We, by necessity, must rely on our employees to produce these records.”

Staffers are responsible for searching their own private in-boxes in response to requests at the office of Lt. Gov. Dan Forest.

“In every public records request that involves email or other correspondence, the private emails are searched,” Press Secretary Jamey Falkenbury wrote, adding that his office’s policy falls under general rules about how to return and release information.

State’s top officials use private emails sparingly

Forest’s office released 89 pages of emails from his private account from September in a response to a records request.

The records show some of Forest’s top staff also used private email to communicate with him, including Chief of Staff Hal Weatherman, General Counsel Steven Walker and Falkenbury, all of whom used Gmail accounts.

Many of the emails discussed videos the lieutenant governor was making on topics such as unemployment insurance and why teachers leave the workforce. Other emails focused on speeches Forest would be making, how to respond to a reporter’s question about nuclear power and a short email about Syrian refugees.

In another exchange, on Sept. 1, Falkenbury forwarded an email to the lieutenant governor from radio host KC O’Dea, who shared links to several local news stories about a new “Literature of 9/11 course” at the University of North Carolina at Chapel Hill.

“This should be a fun one…” O’Dea wrote, under the subject line: Dan Topics.

“The UNC article made national news today. Fox was all over it,” Falkenbury told the lieutenant governor.

Falkenbury said the law allows the lieutenant governor and his staff to use private email to conduct public business and that “all employees are made aware that the public records laws apply to all government business emails, regardless of the email account used.”

“We can’t always control where the emails originate,” Falkenbury wrote. “A lot of the time, constituents have our private email address and contact us directly there, so that’s where the conversation starts and ends. Also, we are on the road a lot and answer/send emails from our phones. I can’t speak for everyone, but I’d assume their personal emails are their default accounts.”

Each staffer who uses a private email for public business is required to keep those emails in his or her inbox “pursuant to the retention schedule,” Falkenbury wrote.

“If employees desire to clean out their email box, they either print out emails conducting public business for filing or forward them to their government account for archiving,” Falkenbury said.

McCrory’s office released 66 pages of emails, largely responses to people who emailed his private account rather than his official North Carolina email address about possible appearances, news events and other concerns. His replies are often brief, and are typically copied to his staffers’ state accounts.

But when he was forwarded a release from the Carolina Partnership for Reform, a conservative group that generally backs proposals from State Senate leadership, that criticized state legislators for ignoring the needs of rural counties, his response was more pointed.

“Those responsible for this propaganda need to stop hiding behind curtain in these continued misleading attacks,” McCrory wrote to Republican House Speaker Tim Moore from his iPad Sept. 1.

“From Senate. No more nice guy,” McCrory wrote in a follow-up on the message to then-budget director Lee Roberts, Deputy Chief of Staff Jimmy Broughton and Legislative Liaison Fred Steen.

The office of Attorney General Roy Cooper, the Democrat who will face McCrory in the 2016 race for governor, released 23 pages of emails in response to a request. They largely consist of messages from Cooper’s staff about news clips, schedule updates and announcements to his “Roy Home” account.

Cooper never responded to the messages.

Many agencies avoid private email altogether. Requests to several cabinet agency appointees and elected department heads returned no documents at all.

State Superintendent of Public Instruction June Atkinson and State Auditor Beth Wood both said they do not use private email for public business

Wood’s general counsel, Tim Hoegemeyer, said the office avoids private email because it doesn’t adhere to good auditing standards.

“Those standards require that audit work, including work conducted by email, must be accounted for and meticulously documented,” he said in an email. “This could not be done well, or done at all, if business was conducted via personal email.”

Hoegemeyer said he watched Wood run keyword searches in her private email for work-related items “because we wanted to make sure she hadn’t forgotten/missed anything.”

Nothing turned up.

North Carolina Department of Public Instruction spokeswoman Vanessa Jeter said Atkinson does not use a personal account to conduct government business and that she and all DPI staff, including State Board of Education members, have state email addresses for work-related correspondence.

“NCDPI follows the state public records law regarding emails as public records,” Jeter wrote. “We do not have a formal policy in place at this time apart from the state law.”

The Department of Environmental Quality and the agriculture department also said their agency heads do not use private email for public business, and spokespeople for state Transportation Secretary Nick Tennyson and Public Safety Secretary Frank Perry said the two had no emails pertaining to public business in their personal accounts.

A spokesman for Secretary of State Elaine Marshall said last year she had received one email related to her position that was sent to her private account. She forwarded the message, an invitation to an event in Raleigh, to a public account three weeks later.

An expectation to do business in public

Most agencies cited policies that discourage employees from using non-government email accounts to conduct business, and many provide remote access for employees so they don’t have to use personal email accounts.

Spokespeople with McCrory’s office, as well as other departments in his cabinet, referred questions about the use and retrieval of private emails to the governor’s public records policy, as well as executive actions from McCrory and his predecessor reaffirming that private emails conducting government business are public.​

But several agencies said government officials may need to think harder about how they treat these records in the future.

In response to questions about the use of private email, state auditor spokesman Hoegemeyer said he planned “to take a deeper look at our policies to see what changes may be necessary to address the issues you’ve raised by your inquiry.”

And although the state’s agriculture agency hasn’t had problems with employees conducting the state’s business through private email, department spokesman Wagner said the lack of a clear policy may change in the future.

“This request has brought this issue to our attention and we will begin looking into the necessity of adding this to our public records policy,” Wagner wrote. Mandy Locke and Dan Kane of The News & Observer contributed to this story.