Reuters / Brian Snyder
Republican presidential candidate and former Massachusetts Gov. Mitt Romney listens to a question in New Hampshire on Dec. 11. He said in an interview about the missing public records that he had no obligation to help researchers for his opponents.
It appears it was legal for Mitt Romney's aides, on their way out of the governor's office in Massachusetts in 2006, to write personal checks for $65 each to buy the hard drives from their state office computers, taking with them government emails and other records of his administration, including information about the birth of the Romney health care insurance mandate.
It was legal for the Romney administration to spend $97,000 in public money to swap out computers and email servers, making sure that emails never got into the hands of the public, journalists, historians and, not incidentally as Romney himself points out, his opponents in the 2012 presidential campaign.
And the Romney administration got legal permission, Reuters reported Thursday evening, to destroy 150 boxes of government records.
But illegality is not the only test, say advocates of open government, who wonder when the public will insist that all candidates for high office do more than give lip service to transparency.
"Public officials need an attitude adjustment," said Ken Bunting, executive director of the National Freedom of Information Coalition at the University of Missouri. "They need to recognize that the instruments of the government don't belong to them. They belong to the people. Self-government doesn't work without information. Government records, including emails, ought to be available without filing a lawsuit, without any more than a keystroke."
"Here's the irony," Bunting added. "In a roundabout way, Romney and his aides may have done a favor for open government. I would imagine that, for the citizens of Massachusetts, buying your hard drive so things disappear doesn't pass the smell test. Everybody's going to know it was done for the purpose of hiding information from the public. Even if that's perfectly legal, people would say, ‘How can they get away with that?’ Maybe there will be a move to change the law."
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The facts so far
Here's what's known about the case of the purged emails and missing boxes:
On Nov. 17, The Boston Globe reported that 11 members of Romney's staff bought 17 computer hard drives five years earlier. Of course, the staff were buying more than a used hard drive — they were buying the government records on those hard drives. What about the backup copies on state servers? Other computers in the governor's office were replaced as part of "routine maintenance."
Reuters moved the story forward on Dec. 6, documenting that the Romney administration spent $97,000 to replace computers, causing other emails to be lost. On its way out the door, the Romney team spent $205,000 for a three-year lease on computers for the governor's office, replacing a lease that had provided the same number of computers for $108,000.
Aides to Romney's successor, Gov. Deval Patrick, a Democrat, said they can't fulfill public records requests for the Romney administration's emails because the emails are gone. A spokesman for Romney's campaign blamed Patrick, a supporter of President Obama, for encouraging requests for public records, but didn't answer the question why the state computers were replaced, making the records unavailable to the public.
Then this Thursday, Reuters reported that the Romney administration got permission to destroy 150 boxes of paper records. A Romney spokeswoman wouldn't say whether the records were actually destroyed, but said the law was followed.
When the hard-drive story broke, Romney's staff emphasized that the purchases were legal. State law doesn't make it a crime to erase digital records, and state employees do have the option to buy the state computers they had used, though state officials said they can't recall anyone else buying just the hard drives.
The former governor has said the hard drives could have contained private information, such as "medical records, resumes from people who have applied for jobs, judicial appointments made, and people applying for those positions."
Keeping private information private wouldn't necessitate buying the hard drives, however. When government records are released to the public, it's common to redact, or withhold, information that is private, while disclosing the rest. If that weren't the law in every state, public officials could make every government record off limits to the public by merely writing their Social Security numbers or home telephone numbers at the bottom of the page. But state laws are an outdated patchwork when it comes to electronic information. Here's a guide to state laws on access to electronic information, from the Reporters Committee for Freedom of the Press.
Romney offered another rationale, in a subsequent interview with The Telegraph in Nashua, N.H., saying he had no obligation to help his political opponents. "Well, I think in government we should follow the law. And there has never been an administration" in Massachusetts, he said, "that has provided to the opposition research team, or to the public, electronic communications. So ours would have been the first administration to have done so."
Since then, he has dodged questions at campaign events about whether his computer was one of the ones that got a new memory, calling out to reporters "Thanks, guys," as he ducked into an SUV. If elected president, he said, he would follow a policy of transparency, doing "what is required by the law and then some."
On Dec. 7, The Boston Globe reported that previous Republican governors of Massachusetts had similarly wiped the slate clean, though the purchasing of home drives seems unprecedented. Tens of thousands of Cabinet secretary emails in the last three Republican gubernatorial administrations were automatically wiped off state computers after the officials left office, officials said.
A different set of records from the Romney administration will be made public. The Massachusetts secretary of the commonwealth will make available more than 460 boxes of archived documents. These will be made available five boxes at a time — no word yet on when that will begin or how long that will take.
Other Romney records are already public, but clearly that's mostly chaff. "An Associated Press examination of much of the available Romney archives holdings earlier this year suggested the material available then was far from comprehensive. More than 75 cartons reviewed by the AP included staff and legislative documents but no internal records written to or from Romney himself — except for ceremonial bill-signing and official letters."
An issue in many states
One element of this case is unique to Massachusetts. Though the state law calls for retention of emails as public records, a 1997 ruling by the state's Supreme Judicial Court made gubernatorial records exempt from that public records law. The secretary of the commonwealth, William Galvin, a Democrat, said Romney still had an obligation to turn all records over to the state archives, not to allow employees to take them, even if they wouldn't have been subject to disclosure.
"I'm not aware of any other state where the governor's office has such a broad exemption," said Bunting at the freedom of information clearinghouse. "In a lot of states, judicial emails are exempted. In about half the states, the legislature isn't covered."
Don't miss that part. Legislators tend to exempt themselves from state and federal records laws. That's why you're not reading emails from Barack Obama's term in the Illinois Senate, or Newt Gingrich's tenure as speaker of the House.
But other elements of this story are more common from state to state. Republican and Democratic governors have fought to keep public records out of the reach of the public. In Washington state, for example, Gov. Christine Gregoire, a Democrat, has exerted executive privilege to block access to records, in a case about to go to the state Supreme Court. And in Texas, presidential candidate Gov. Rick Perry's staff has argued that it must keep emails for only seven days before purging them, because of a supposed lack of disk space for storage. Perry's office said the policy was the same one followed by his predecessor, George W. Bush.
The value of such records was demonstrated again this month in South Carolina, where Gov. Nikki Haley, a Republican, sought the office on a platform of transparency in government. The State newspaper reported that her office had deleted most of its emails. Then emails did emerge showing that Haley tried to steer a state health care panel to a conclusion that she preordained.
Lessons from history
Romney's opponents haven't made much of the document purge. Newt Gingrich did make a comment, "in non-candidate mode," asking, "They did what?" And he added in another of his roles that it would make a good twist in a political thriller, "As a novelist, by the way, it's a lot of fun."
After Romney's non-explanatory explanations, the Erasergate story has dropped from Washington political media reports on the campaign.
"I'm not surprised that it hasn't had more legs, given what passes for journalism these days," said Mark Feldstein, a historian, former investigative correspondent for CNN and ABC and now a professor of broadcast journalism at the University of Maryland. "These records don't belong to Mitt Romney or his staff. Those computers are paid for by the taxpayers, and they were working on taxpayer time."
Feldstein, who wrote a history of Washington scandals called "Poisoning the Press: Richard Nixon, Jack Anderson, and the Rise of Washington's Scandal Culture," said historians "are concerned, how are they going to write the history of these times if so much is on email and so few emails are preserved."
But politicians now, he said, are more savvy than in President Nixon's day.
"The great lesson learned from the Nixon administration wasn't to be more honest, but to not get caught, to make sure you don't leave a trail behind you," Feldstein said.
"Mitt Romney's father was a Cabinet secretary for Nixon, and no one in his administration would have been impervious to that lesson. George Romney was HUD secretary. The lesson was clear: Too much disclosure can torpedo an elected president, much less a presidential candidate."
We sent questions to the Romney campaign: Why did the staff purchase the hard drives? Was it to keep emails out of public hands? What is the campaign's position on open and transparent government? We heard no reply.
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"I think it matters more to the people like us," lamented Feldstein, the historian and former journalist, "than it does to the public."