Saradise Lost - Book 4 - Chapter 40 -- Andree McLeod Files Motion to Reconsider on McKay Private Email Decision

Here is the text of a letter sent to some members of the press by Don Mitchell, Andree McLeod's attorney in McLeod vs. Parnell (Palin):

As you know, for the past sixteen months I have represented Andree McLeod in two civil actions filed in the Alaska Superior Court.

The first lawsuit, McLeod v. Parnell (Palin), seeks to establish that an email that a state employee sends/receives on his/her private email account (rather than on his/her State of Alaska email account) and whose content involves the transaction of official state business is a “public record” for the purposes of the Alaska Public Records Act, and that using private email accounts to transact office state business is a per se violation of A.S. 40.25.140, which prohibits a state employee from “obstructing” public inspection of “public records.”

As the lawsuit has progressed I have been amazed (but oddly not surprised) that the Alaska press has viewed the legal issues that I am litigating on behalf of Ms. McLeod to be a private matter between Ms. McLeod and former Governor Palin, rather than something in which the Alaska press might have an institutional stake.

That disengagement was most on display when the Alaska press reported that on January 22, 2010 Superior Court Judge Patrick McKay issued a decision in which he granted the Alaska Department of Law’s motion to dismiss the lawsuit.

The cursory reporting implied that Judge McKay did so because he found that emails sent/received on private email accounts are not “public records.” In fact, while the analytical precision Judge McKay brought to his judging was wanting in several significant respects, what he said, albeit implicitly, was that such emails could be “public records” but only at such time, if at all, that the agency who employs the state employee who sent/received the emails decides to “preserve” the emails. He also implied that a state agency has total discretion to decide to “preserve” or not “preserve,” even if the decision to not “preserve” is made with bad motive (i.e., to prevent the public and the Alaska press from discovering that the emails even exist).

The reason that if any of you read Judge McKay’s decision, or read it closely, I would hope that you would have been concerned is that the undefined (by the Alaska Legislature) word “preserved” that Judge McKay defined on his own appears in the generic A.S. 40.25.220(3) definition of the term “public records” in the Alaska Public Records Act.

In other words, Judge McKay’s holding applies to all records that the executive branch of the government of the State of Alaska generates. Not just to emails or to emails sent/received on private email accounts.

Attached is a copy of the motion for reconsideration that I filed with Judge McKay this morning that explains both why he got the intent of the Alaska Legislature embodied in the undefined word “preserved” wrong, but also the policy consequences that will flow if Judge McKay denies the motion for reconsideration (which I expect that he will) and the Alaska Supreme Court then upholds Judge McKay’s decision.

I would hope that for the Alaska press that possibility might be more than a bit troubling, among other reasons because yesterday the ADN reported that (other than Mike Doogan, whose support is the kiss of death in the Alaska House of Representatives) the members of the Alaska Legislature could care less about ensuring that the Alaska Public Records Act accomplishes its intended objectives, one of which is to enable all of you to do your jobs.

Regards,

Don Mitchell


[emphases added by PA. Doogan = "kiss of death," eh? Gotta love that, if for totally different reasons than those of Mr. Mitchell]