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Private email accounts subvert open government

The Oregonian/OregonLive

Back in 2016, when transparency in Oregon government was all the rage, state agencies were reminded of some basic tenets of open government. Among them: Public employees and officials should use their state-provided email accounts for public business. If they had to use their personal email, they should copy the message to their public accounts as soon as possible.

This was more than just an idle recommendation. With the resignation of former Gov. John Kitzhaber amid allegations — since confirmed with his recent settlement with the Oregon Government Ethics Commission — of misusing his public office for personal gain, Oregonians learned just how opaque Oregon government is. Some of the evidence against Kitzhaber and his fiancee Cylvia Hayes, whose own state ethics case is ongoing, came from emails they sent from private accounts that few in the public knew even existed.

Unfortunately, even with such clear-cut examples of the need to conduct public business on public email, the calls for transparency haven’t always stuck. The Oregon Board of Education is a case in point.

The board, charged with setting educational policy for the state’s K-12 system, includes seven voting members appointed by the governor and two non-voting members representing the secretary of state and state treasurer. They are public officials serving on a public body that is subject to Oregon’s open meetings and records laws and have a duty to retain and make accessible its records.

But as a recent email showed, Oregon Department of Education staff sent materials for an upcoming meeting to members’ personal or work accounts — not the state accounts that the department opened in their names. The only member who received education-board materials at her education-board email account was Kim Sordyl, the secretary of state’s designee and a perennial thorn in the department’s side.

To be fair, there’s no reason to believe that members of the education board are conspiring in personal email exchanges. Charles Martinez, the chairman of the board of education, told The Oregonian/OregonLive Editorial Board that members don’t use email much beyond routine matters, instead reserving discussions for public meetings.

At the same time, there’s no reason that education board members should be using personal accounts in the first place. They all have state-issued email accounts through which the public expects them to conduct their work as members of the board of education. That’s Public Records 101, as State Archivist Mary Beth Herkert noted. If they must use a private email, they should immediately copy the record to their official accounts where they can be retained and preserved. Otherwise, how is the agency supposed to keep custody and ensure retention if such messages are in the control of Gmail or an internet service provider?

In fact, the state Department of Administrative Services reinforced that protocol as part of a model records management policy it issued in 2016. State agencies, including the Oregon Department of Education, adopted versions by October of that year.

Unfortunately, adopting a policy isn’t the same as ensuring it’s followed.

Chances are the board of education isn’t the only one still allowing widespread use of private emails. As The Oregonian/OregonLive revealed three years ago, elected officials and employees throughout state government routinely used private accounts rather than their state emails to handle public business.

The next step should be for agencies to evaluate how faithfully they are adhering to these best practices. The Department of Administrative Services should also assess their compliance. Provided that transparency is still the goal.