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Our View: Court's e-mail ruling is a victory for open government

Longtime Palin nemesis Andree McLeod won a partial victory Friday when the Alaska Supreme Court ruled that state business conducted on private e-mail accounts should be part of the public record.

That's a victory for Alaskans and open government.

The court denied McLeod's argument that the use of private e-mails was in itself a violation of the public records law. But the high court did confirm a Superior Court finding that any state employee who deliberately destroyed or failed to preserve a record of state business done in a private account could be breaking the law.

The state had argued that the public status of a record was defined by whether or not a state employee or agency preserved it. In other words, any record, transaction, or communication not preserved was by definition not a public record. Clearly, that argument gave agencies and individual state employees the ability to do public business in the dark. Don't preserve it, and it's not public record, no matter how indisputably public the issue would be to any reasonable person.

The high court rejected that argument, instead ruling that any communication or business conducted by private e-mail that is "appropriate for preservation" is a public record and must be preserved and accessible for inspection by any Alaskan.

That's the intent of Alaska's public records law. State employees, from governor to clerk, don't get to decide what's public and what isn't. That's a matter of law.

Any other decision would have, as McLeod argued, gutted the public records law because it would have left public records definitions and preservation to the discretion of state employees.

What the court said in effect is that public business, conducted by any method or medium, must be part of the public record and preserved accordingly. Private accounts give no cover, and failure to preserve isn't a dodge but a violation.

So, state employees can conduct state business on private e-mail accounts. But they had better make sure they keep a record that's available to the public.

Current Parnell administration policy aims to make the issue moot that any state employee who does state business on private e-mail must copy those e-mails into the state e-mail system for preservation. That's good policy, but policy isn't law.

As more than one Alaskan, including McLeod's attorney Don Mitchell, have pointed out, modern communications (think Facebook, Twitter, texting and whatever else is to come) may require lawmakers to update Alaska's public records law. Lawmakers could decide the state business must be conducted on a state system with automatic archiving.

Until then, McLeod deserves credit for relentlessly pursuing the case, because the issues of open government at play will outlast the players. With Friday's ruling, the justices upheld the spirit and meaning of Alaska's public records law.

BOTTOM LINE: Public business is public business, no matter the medium.