It's unfortunate that state court judge Craig Stowers has applied for the vacancy on the state supreme court. Because he has done so, Judge Stowers has removed himself from two important freedom of information cases involving Gov. Sarah Palin. Recusing himself was the ethically proper move, since Gov. Palin is the person who will ultimately pick the next supreme court justice. But putting a new judge on the two cases means the public will have to wait much longer to learn whether Gov. Palin may continue to shield some of her official activities from public accountability.
One case involves the governor's use of private e-mail accounts to conduct state business. She has said she stopped doing so, but the state continues to fight the lawsuit that seeks to end the practice.
If the governor is conducting state business by e-mail, those e-mails are public records. It doesn't matter if they are sent on personal accounts or the governor's official state e-mail account -- those e-mails should be tracked and saved as official state records. They may be protected from public disclosure by various exemptions in state law, but private e-mail accounts cannot be tolerated as a way for state officials to do the public's business off the official books.
If the courts let this public records loophole continue, the Legislature should swiftly close it. Spenard State Rep. Mike Doogan has filed a bill to do that (HB195), but it went nowhere in this year's Legislature.
The second freedom of information case involves whether a governor can give a private citizen special access to official state information that is withheld from the rest of the public. The private citizen in question is Todd Palin, the governor's husband. He is also an employee of BP, one of state government's largest taxpayers, though he doesn't hold a managerial position.
The lawsuit says that when Gov. Palin shares official state information with a private citizen -- even the governor's husband -- the state has waived any right to keep the rest of the public from seeing it.
In fighting the second case, the state's lawyers argue the governor can share otherwise secret information about state business with this particular private citizen, because her husband is a "trusted adviser."
Allowing special treatment for a "trusted adviser" in the public records law is a dicey concept when that adviser is outside state government. What happens if that "trusted adviser" is a lobbyist who cashes in on his or her privileged access to the state's chief executive?
In this case, the courts need to draw a simple, bright line: If the "adviser" to a state official is not a state employee or contractor, that "adviser" has no privileged access to state information. Any official information shared with that private citizen must be available to the public at large. If the courts don't draw that line, the Legislature should.
BOTTOM LINE: If the courts allow these loopholes in the state public records law, the Legislature should close them.