Status 2011-10-14

I have been asked why am I picking on Rick Perry with regards to his email destruction policy.

In 2007 I believed the email destruction policy was obnoxiously bad public policy, but, none the less legal. Because of the legal wrangling and legal research done between November 2007 and March 2008, today I believed the email destruction policy is simply illegal.

So my activities this time around are along two separate, but inter-twined paths

1. Highlighting the illegality of the email "archiving" policy. That policy is to:
   • Print important emails out as paper copies
   • File the resultant paper copy presumably with some annotation regarding the retention period.
   • Delete the underlying email which is an electronic state record.
2. Stop the destruction of the electronic versions of the email records by entangling the electronic records with a series of open records requests under the Texas Public Information Act.

There are two Texas statutes involved; The Archiving Statute, Texas Code 441, and the Public Information Act, Texas Code 552. The archiving statue defines public information and how that public information is to be retained. The Public Information Act covers the public's access to that information and criminalizes the destruction of public information. Destruction of public information is found TX Code Sec. 552.351 and sets the crime as a misdemeanor.

Regarding thread 1 (the illegality of the email destruction policy) there are two tasks awaiting official response;

• The criminal complaint submitted to the Travis County District Attorney. I am awaiting a response from the Special Prosecution Division of the DA.
• The open records request to the Texas State Library and Archive Commission (TSLAC) requesting the documentation of who at the TSLAC approved this email destruction policy in 2007 when the Record Management Officer at the Office of the Governor submitted this policy to the TSLAC for approval. The PIA request is within the 10 business day time within which the TSLAC must respond.

Regarding thread 2 (using a series of PIA request to stop the destruction of emails) there are two updates:

• I am in the process of soliciting donations for the money to pay the $342.00 charge which must be paid in order to get the email headers.
• I am appealing the $1,962.00 charge which must be paid in order to get the email headers the PIA request is within the 10 business day time in which the TSLAC must respond. The appeal to the Cost Rules Administrator within the Office of the Texas Attorney General is within the 45 business day in which the office of the AG has to respond to the appeal.

Two small things I would like to clear up. One is that the emails which contain the PIA requests actually contain two requests (for email headers alone and for complete emails). The other is those PIA requests cover far fewer emails than has been reported. I asked for the email headers because this provides the opportunity to perform a traffic analysis of the email flowing into and out of the Office of the Governor.

Traffic analysis is determining who as talking to whom, when the conversation occurred, and (because of an email subject line) what was the topic of the conversation, but without any of the details of the conversation. The request for the complete emails would include the actual contents of the conversation. Think of the difference between your telephone bill (email headers only) and a wire tap (the complete emails). The telephone bill provides traffic analysis( e.g. John Washburn called Lori Washburn at 4:13 pm of October 23, 2011 for 4 minutes), but provides no information about the content of that 4 minute conversation. If it is a bill for cellular service then the location of the originating cell phone and the location of the receiving cell phone are also part of the meta data of the call. Thank you Bill Clinton for that intrusion into telecommunication privacy.

I asked for the email headers because only one of the 54 exceptions to the Texas Public Information act applies to the information contained within an email header. This exemption is required the redaction of non-governmental email addresses; TX Code chapter 552 Sec. 552.137.

This leads to the limited nature of the PIA requests. In order to avoid this one exemption in the Texas PIA which might apply to an email header, I deliberately structured the PIA requests so as to not ask for any email which contains a non-governmental email within any of the email address fields. For example, my emails from tx-gov-pir@washburnresearch.org to publicrecords@governor.state.tx.us which contained the PIA requests are not covered by those PIA requests. This is because the these emails do not meet the definition of "Governmental Email" contained in the PIA requests because there is at least one email address, tx-gov-pir@washburnresearch.org, which is not from a government domain (ends in .us, .gov, or .mil). This limitation to "Governmental email" is for both the PIA requests for email headers and for the PIA request for the complete emails.