Another Question For The DA
We're still waiting for the Milwaukee District Attorney's Office to explain why one of his John Doe prosecutors used his personal email -- rather than a subpoena -- to file an Open records request recently. There's got to be a reasonable explanation right? Right?
While the Dead Tree appears reluctant to pursue the question, Media trackers got some interesting reactions from some normally left-leaning open government types.
Two groups that advocate for transparency in government have reservations about government officials using personal e-mail addresses for official business. The subject became relevant recently when David Robles, an attorney in the Milwaukee County District Attorney’s office, used his personal Gmail account in an open records request he made seeking documents from Governor Walker’s office and the state Department of Administration. Some speculate the relatively unusual records request was related to an on-going John Doe investigation that has suffered from an appearance of conflict and partisanship. The District Attorney’s office has indicated that the records request, though publicly available, was related to official government business.
Wisconsin’s open records law states that some communications and documents used in government business must be produced on request to the public. In some instances where fulfilling the request is time consuming, a modest fee may be charged to the individual or organization seeking the information. Generally speaking, most communications (except for narrow exceptions) to or from government officials are a matter of public record. This includes e-mails and when a government official uses a personal e-mail account for government business, that specific e-mail is a public record.
But using a personal e-mail account for official business presents a tricky problem: it is easier for government business transacted over such accounts to be overlooked when it comes time for that official or agency to turn over documents in compliance with the state open records law. Unlike official government accounts administered by an IT official who works with others to comply with the law, a personal account is under the control of an official who may or may not remember to check that account for records that should be public.
Mike McCabe of the Wisconsin Democracy Campaign said intentional use of a private e-mail account for official business, “is a violation of the spirit if not the letter of our open records law.” McCabe, who is respected for his organization’s ability to track campaign fundraising and spending in Wisconsin, said the practice, “is clearly motivated by a desire to keep some actions out of the public eye. As such, it clearly is a practice designed to subvert the intent of the law.”
Subversion of the law, intentional or not, is a somewhat ironic problem when an attorney working for John Chisholm, the Milwaukee DA, is responsible for the use, or attempted or suggested use, of a method that doesn’t quite match the standards of good government organizations.
Another expert, Bill Lueders, also finds the practice concerning. Lueders, president of the non-partisan Wisconsin Freedom of Information Council, echoed some of McCabe’s concerns, “if the purpose is to circumvent the law, it is clearly a violation of the law.” Lueders noted that using a personal account, even without the intention of skirting the law, means “it would be easier to shield” information from release. This risk is not incurred when government e-mail accounts are used.
The Wisconsin Freedom of Information Council has proposed that state law be changed to require government officials to use official e-mail accounts for official business. As it stands, using a personal e-mail account at minimum presents thorny problems and raises questions of ethics and judgment, but the law change proposed by Lueders’ group would make use of personal accounts completely off-limits for government work. That means David Robles would not have been allowed to use his personal e-mail account in the open records request since it was part of official DA office business.
“As a matter of good government, officials should communicate as much as possible on a government account,” Lueders said.