Ex-Parnell official says governor's office uses text messages to avoid disclosure

Sean Cockerham | Tribune Media Services

WASHINGTON - A former official in Alaska Gov. Sean Parnell's administration says the governor's office sees text messages as a way to communicate about sensitive issues while avoiding public disclosure through the open records law.

Parnell's aides deny that is their intent. But it's clear text messages sent by state officials on state cellphones represent a big loophole in Alaska's open records law, under which texts appear to fall under the same disclosure rules as emails and paper documents but are not retained by government in the same manner.

The governor's spokeswoman says texts are not saved and the public has no right to see them, even as Parnell officials text while his administration takes on controversial issues such as trying to cut taxes on the oil companies by billions of dollars.

"That's really handy because it creates this totally private walkie-talkie system for public officials to discuss public business privately in direct contravention of everything that open government law stands for," said Charles Davis, executive director of the National Freedom of Information Coalition.

Texts have become an issue in governments across the country as politicians and bureaucrats favor texts and instant messages over other forms of communication and argue about whether the public has a right to them. Text messages sent by then-Detroit Mayor Kwame Kilpatrick ended his political career and landed him in jail after the city's communication provider turned them over to federal authorities investigating extortion and bribery.

The Florida attorney general said texts sent on state devices, as well as instant messages, are public records and urged agencies to save them. Utah took the opposite approach and last year passed a bill to specifically put texts off limits.

Transparency has been a particularly sensitive issue in Alaska. Parnell's predecessor as governor, Sarah Palin, and some of her top aides were known to use private Yahoo email accounts instead of their official email to communicate about state business. That put such emails out of reach from being saved by the state and disclosed to the public through records requests.

Parnell has said he stopped the practice of using off-the-books emails.

But Russ Kelly, associate director of Parnell's office in Washington, D.C., until this spring, said he was told not to use state email to criticize a commissioner because it would be subject to a public records request. Kelly said he was told texting is a way around that.

Kelly said Parnell's deputy chief of staff, Cindy Sims, delivered that message to him last summer after he wrote an email to her and Mike Nizich, who is chief of staff for Parnell and held the same job under Palin when she was governor.

Kelly's email was critical of a lobbying visit to D.C. by Alaska Department of Natural Resources Commissioner Dan Sullivan. It said Sullivan was ineffective in meetings with members of Congress, made them impatient by focusing on overly basic "Alaska 101" information and spent too much time talking about his resume from the Bush administration. Kelly said Sims, whom he described as Parnell's "right-hand person," wasn't happy about the email.

"She was admonishing me for putting it in writing," Kelly said in an interview. "She expressed to me that both her and Mike Nizich were not happy that I had put it in writing."

"They felt that by putting it in writing that puts it up for a (Freedom of Information Act) request and that was a bad thing," Kelly said. "She expressed to me they were under tremendous pressure and had a severely heavy workload due to FOIA requests."

Kelly said he told her it was a six-page report on Sullivan's visit and would have been difficult to cover in a telephone call.

"She said, 'Well it's just not something that should have been in writing, why do you think we text?'"' Kelly said.

Parnell spokeswoman Sharon Leighow said this week that Kelly has "mischaracterized" the conversation.

"Ms. Sims did counsel against sending such email critiques of a state commissioner. However, it was not to avoid a records request, it was simply not the place of an associate director to circumvent his supervisor. The governor's office does not have a practice of putting sensitive information in text messages to avoid public records requests," Leighow said.

Kelly said the governor had asked him to attend the meetings with Sullivan. He worked for the Alaska executive branch for almost nine years, starting as deputy chief of staff to then-Lt. Gov. Loren Leman. He was later Palin's legislative director but said he asked for the transfer to Washington because he was disturbed by the power that Palin political confidantes like Frank Bailey (a newcomer to state government who later described himself as Palin's "hatchet man") wielded in the governor's office in Juneau.

Kelly remained in the Alaska governor's office in Washington under the Parnell administration but said he decided to leave in the wake of John Katz's departure last fall after 32 years heading the office. Kelly said he gave notice his last day would be June 1 but was told to leave immediately in late March after he expressed frustration in an email with Nizich about the governor's office stopping the nomination of an Alaskan to a Federal Communications Commission board. He's now communications director for a Northeast utility.

A Public Right?

Courts across the country have been treating text messages as public records that fall under the same disclosure laws as email and other documents. An Illinois judge last month ruled that even the texts sent between the private cellphones of city officials discussing public business are subject to the Illinois Freedom of Information Act.

Alaska law defines public records to mean "books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, regardless of format or physical characteristics." Emails sent on state business have been released to the public under the Alaska law and there is no reason to think texts or instant messages should be any different, according to the Reporter's Committee for Freedom of the Press, which provides legal advice for journalists.

But there have been no Alaska court cases to establish that and the governor's spokeswoman, Leighow, asserted this week that "text messages are transitory and are not public records."

The state denied a public records request made by the Daily News for text messages sent from the Alaska governor's office during Parnell's push this spring to slash taxes on oil companies. The scant information released showed Nizich and Sims texting frequently on their state phones.

But the state said it was unable to disclose the contents of their messages -- not because they aren't public records, but because they aren't saved. State government technology director Pat Shier said in an interview that the state has never required its cell phone service provider, GCI, to save the text messages sent from government phones. GCI spokesman David Morris said its practice is not to preserve text messages unless there's a court order to do so.

Reach Sean Cockerham at scockerham@mcclatchydc.com or on twitter @seancockerham

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