RALEIGH (AP) — Nearly a decade ago, North Carolina Gov. Mike Easley drew sharp criticism after setting up a private email account administration staffers later said was designed to circumvent public records laws. The secret address — the name of fictional detective Nick Danger spelled backward — was eventually revealed in a public records lawsuit by several media outlets, including The Associated Press and The News & Observer of Raleigh.
Since then, subsequent governors Bev Perdue and Pat McCrory have issued executive orders asserting that private emails can be public records.
But ensuring state agencies reliably provide them is easier said than done.
Three news organizations — The Associated Press, WRAL News and the News & Observer — asked every appointed executive agency secretary and elected member of the Council of State to provide all private emails used to conduct public business for one month in 2015. The requests were part of an N.C. Open Government Coalition project inspired by Sunshine Week, a celebration of transparency and open government.
The audit revealed that agency heads vary in their use of private email and many don’t use it at all. And although all the agencies queried agreed private email used to conduct government business is public, retrieval frequently depends on the employee whose records the public seeks.
“Email is one of the most important records we have of how government conducts its business because it shows the day-to-day business and concerns,” said Jonathan Jones, an instructor at Elon University and director of the N.C. Open Government Coalition. “Even if you have an agency that does an excellent job retrieving and maintaining its records, if one of its officials or employees uses private email, that creates a real headache for those government officials who are trying to do the right thing.”
McCrory’s office released 66 pages of emails, largely responses to people who emailed his private account rather than his official North Carolina email address about possible appearances, news events and other concerns. His replies are often brief, and are typically copied to his staffers’ state accounts.
But when he was forwarded a release from the Carolina Partnership for Reform, a conservative group that generally backs proposals from State Senate leadership, which criticized state legislators for ignoring the needs of rural counties, his response was more pointed.
“Those responsible for this propaganda need to stop hiding behind curtain in these continued misleading attacks,” McCrory wrote to Republican House Speaker Tim Moore from his iPad Sept. 1.
“From Senate. No more nice guy,” McCrory wrote in a follow-up on the message to then-budget director Lee Roberts, Deputy Chief of Staff Jimmy Broughton and Legislative Liaison Fred Steen.
The office of Attorney General Roy Cooper, the Democrat who will face McCrory in the 2016 race for governor, released 23 pages of emails in response to a request. They largely consist of messages from Cooper’s staff about news clips, schedule updates and announcements to his “Roy Home” account.
Cooper never responded to the messages.
Queries to several state agencies show the use of private email is a gap in public records laws aimed at allowing citizens a look behind the official curtain into what officials are doing and saying as they carry out their public duties.
Departments under McCrory’s control, from revenue to cultural resources, could not point to policies instructing how the agencies ensure private email accounts are included in searches for public records if the correspondence doesn’t pass through state-owned servers. That’s also true of Council of State offices headed by independently elected leaders like the attorney general and the secretary of state.
“The Department of Health and Human Services does not archive employees’ personal email accounts,” spokeswoman Kate Murphy wrote in an email, noting DHHS has its own policy governing use of correspondence. “If an employee uses a personal email account to conduct state business, it is the responsibility of that employee to preserve the records, either by forwarding the message to their employee email account so that it is saved on the server or printing a hard copy to keep.”
Staffers are responsible for searching their own private inboxes in response to requests at the office of Lt. Gov. Dan Forest.
Forest’s office released 89 pages of emails from his private account from September in a response to the records request.
The records show some of Forest’s top staff also used private email to communicate with him, including Chief of Staff Hal Weatherman, General Counsel Steven Walker and Press Secretary Jamey Falkenbury, all of whom used Gmail accounts.
In one exchange, on Sept. 1, Falkenbury forwarded an email to the lieutenant governor from radio host KC O’Dea, who shared links to several local news stories about a new “Literature of 9/11 course” at the University of North Carolina at Chapel Hill.
“This should be a fun one.” O’Dea wrote, under the subject line: Dan Topics.
“The UNC article made national news today. Fox was all over it,” Falkenbury told the lieutenant governor.
Requests to several Cabinet agency appointees and elected department heads returned no documents at all.
State Superintendent of Public Instruction June Atkinson and State Auditor Beth Wood both said they do not use private email for public business.
Wood’s general counsel, Tim Hoegemeyer, said the office avoids private email because it doesn’t adhere to good auditing standards.
The Department of Environmental Quality and the agriculture department also said their agency heads do not use private email for public business, and spokespeople for state Transportation Secretary Nick Tennyson and Public Safety Secretary Frank Perry said the two had no emails pertaining to public business in their personal accounts.
Several agencies said government officials may need to think harder about how they treat these records in the future.
In response to questions about the state auditor’s use of private email, spokesman Hoegemeyer said he planned “to take a deeper look at our policies to see what changes may be necessary to address the issues you’ve raised by your inquiry.”