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.

Complaint Filed withTravis County DA

In the earlier post, Liar, Liar, I stated that I believe the email destruction policy of the Rick Perry violates the Texas archiving statute. The requirements to archive public information is in Texas Code 441. The administrative rules on the minimum requirements for the archiving are found in chapter 13 of the Texas Adminstrative Code. The public access to this public information is found in the Public Information Act within Texas Code 552.

Yesterday, I commited these allegations to paper and filed a criminal complaint with the Travis County DA. The complaint can be found here and the attached exhibit can be found here.

The allegation is straight forward:

• Electronic state records must be retained in electronic form,
• E-mail records in particular must retain the email addresses, and
• The current, process of printing emails out as hard copy and filing the resulting paper violates these minimum requirements.

The failure of the Records Management Officer of the Office of the Governor of Texas to archive electronic state records is a matter independent of an separate from any public information request to see those email records.

When I get a reply from the office of the Travis County DA I will post it here.

Status as of October 5, 2011

The status of the open records requests as of today, October 5, 2011.

1. I have responded to the cost estimates to the requests contained in the first 5 emails. These five emails contain PIA requests for complete emails and PIA requests email headers only for Friday August 26, 2011 to September 12, 2011; inclusive.
   Including the 20% administrative burden, the cost estimates are:
   • A onetime charge of $342.00 for programming to locate, extract, and export the requested email headers. This charge, once paid, would cover all future requests for email headers as well.
   • For each of the 5 requests there is a charge of $1,962.00.00 for the 250 members of the staff to interrupt their day, search their email boxes for responsive emails, forward those responsive email to some centralized location for export.
2. I have accepted the $342.00 charge for programming charge.
3. I have appealed the $1,962.00.00 charge as excessive to the Cost Rules Administrator within the Office of the Attorney General of Texas.
4. Because of a difficulty with a donation, I was not able to mail the check for $342.00 to the Office of the Governor of Texas by midnight of Monday, October 3, 2011. Because of this I have lost the opportunity to get the email headers requested by the public information act requests contained in the first three emails sent to the Office of the Governor. These requests cover email headers from August 26, 2011 to September 5, 2011; inclusive. The email headers provide an enumeration of who is talking to whom when and about what and there is nothing in an email header subject to exemption or redaction. As soon as I raise the $342.00 I will send the check and begin collecting and posting email headers
5. The office of the AG has 45 business days to respond to my appeal of the costs. Because of this I have 45 business days to raise the money required to purchase the complete emails sent or received between August 26, 2011 and September 12, 2011. The worst case is that the price for the emails remains unchanged at $9,810.00 ($1,962.00 per request for 5 requests) for the two weeks of emails. the best case is the Office of the AG will order the Office of the Governor to use more efficient techniques such as programming to locate, extract, and export the complete emails which have been requested.
6. An excellent development is that the Office of the Governor has failed to request any exemptions regarding the complete emails requested so far. The Texas Public Information Act is very clear. Under Section 552.301(a) the Office of the Governor must request a decision from the Office of the Attorney General if the Office of the Governor plans to withhold or redact any emails requested by these PIA requests. The Office of the Governor has failed to make such a request to the Office of the Attorney General so any emails which might be produced by these requests would be unexpurgated
7. As of Tuesday, October 4, 2011 I have suspended the automated emails containing PIA requests for complete emails. I will continue to ask for email headers. This is because I do not have the means to pay for the $1,962.00 per request for complete emails. I cannot in good conscience request records I cannot pay for. Until the ruling from the Cost Rules Administrator states otherwise, the cost of $1,962.00 per request is beyond my ability to pay.

Liar, Liar

In this interview from October, 2010, Governor Perry insists that his email destruction policy of 7 days is legal.

Let me blunt. Governor Perry is lying in this video. The email destruction policy is illegal.

The least important aspect of that destruction policy though is the obnoxiously short retention period; 7 days. Even the 30 day period proposed by the interviewer from the Texas Tribune would be illegal.

This is because both the procedure for preserving emails and the form of the "preserved" emails are illegal regardless of the retention period; be it 7 days, 30 days, 1 year, or 1 decade.

Lies contained in this short video:

1. Govern Rick Perry (or Governor George Bush or the next Governor of Texas) gets to choose the retention period of emails.
   • No. The retention period is set by the Texas State Library and Archive commission via the Official Records Retention Schedule
2. The legislature has not set a record retention policy for emails.
   • The legislature has spoken on the subject of emails by delegating the record retention details to the Texas State Library and Archive Commission via Section 441 of the Texas Statutes. The Texas Email Retention Policy created by the Texas State Library and Archive Commission under the authority of this legislative mandate is very clear:
     1. Emails are records subject to retention. [paragraph e]
     2. Emails are to be retained within the email system for the duration of the retention period [Paragraph b(1) of section 6.93]
     3. Emails are to be retained in electronic form if not retained within the original email system [paragraph a]
     4. Emails are to individually accessible and searchable as electronic records. [paragraph c]
3. There is no set policy for the retention of emails
   • See above. The set policy as established Texas State Library and Archive Commission is:
     • Retain emails in electronic form within the original email system for the complete retention period of the record contained within the email.
     • The retention period of a record depends solely on the content of information contained in the record and not on the storage medium of the record (e.g. email, paper, fax, microfiche, etc.).
4. The current, Print to Paper and File the Paper, policy is not chewing employee time.
   • The current policy for emails (after making the incredible assumption that this paper-based print and file system actually works) has the each member of the staff doing the following every night before leaving for the day:
     1. review every email that is seven days old
     2. Correctly identify the types of records represented by the text of the email message
     3. Correctly match the records types of the email to the record retention codes found in the Official Records Retention Schedule
     4. Correctly determine the email record type which has the longest retention period
     5. Print out the email
     6. Correctly mark the paper copy of the email with the date upon which the printed email may be destroyed. For example, write "Retain until December 31, 2012" on the paper copy of a September 2, 2011 email whose longest record retention code is CE+1; Calendar Year End + One Calendar Year
     7. File the paper copy of the email in such a way that the paper copy can be efficiently found by the staff in response to a Public Information Request made next summer on June 1, 2012 to which this email is responsive.
   • Governor Perry claims the current system above consumes less staff time than would be consumed if the emails were retained within the email server in their native format and in a form which can be searched electronically.

The email destruction policy of Governor Perry is manifestly illegal. But, as all politically connected criminals know:

• breaking the law is only a legal peril if there is prosecutor willing to enforce the law and prosecute the guilty.

Governor Perry knows that no legal peril exists for him because no prosecutor exists who will investigate or prosecute him regarding this matter.

In 2008, Travis County District Attorney, Ronnie Earle, and the Texas Attorney General, Greg Abbott, confirmed the correctness of Perry's analysis as both declined to investigate the complaints filed by me regarding the 7 day email destruction policy. The documentation of these canvas-pounding dives taken by DA Earle and AG Abbot in 2008 can be found is this archive of the 2008 criminal complaints to their respective offices. Not only did they not investigate the complaints, they failed to even confirm that the absurd Print out and File policy was actually being carried out. This was a particular dereliction of duty as the reason proffered for declining to investigate the electronic aspects of the email destruction policy was the rationalization that no records were being lost because the paper-based, print and file system was unerringly preserving each and every important record contained in a deleted email.

In closing I would mention that I have touched on only two of the illegalities presented by Governor Perry back in 2008 with regards to his email destruction policy. I would urge you to read the complete complaints contained in the archive. Attorney Joe Larsen does a much better job than I can of enumerating and articulating all the statute violations.

P.S. as an aside:
If the Office of the Governor cannot fulfill its obligations under the Texas Public Information act because of space constraints, then they should avail themselves of the services offered by the Records Storage Unit of the Texas State Library and Archive Commission.

Gone Fishin' - The First Request

TO:
Katherine Cesinger, Public Information Coordinator, Office of the Governor of Texas

1100 San Jacinto
Room 1200
Austin, Texas 78701

Dear Sir/Madam

I must first state my displeasure that it is still the policy of the Office of the Governor of Texas is to destroy public records after seven days. Please change this obnoxious archive policy (destruction of records after 7 days) to a more reasonable archive strategy. Public records such as e-mails should be archived for at least one year. The retention period should be longer given the simplicity of archiving electronic data.

The following are requests for public records and are made under the Texas Public Information Act (Texas Government Code, Chapter 552)

1. I would like a copy of all the email headers for each governmental e-mail (electronic mail) received by the Office of the Governor of Texas which was received on or after 12:00 am (midnight) Tuesday, August 30, 2011 and received before 12:00 am (midnight) Friday, September 2, 2011.
2. I would like a copy of all the email headers for each governmental e-mail (electronic mail) sent by the Office of the Governor of Texas which was sent on or after 12:00 am (midnight) Tuesday, August 30, 2011 and sent before 12:00 am (midnight) Friday, September 2, 2011.
3. I would like a copy of all the governmental e-mail (electronic mail) received by the Office of the Governor of Texas which was received on or after 12:00 am (midnight) Tuesday, August 30, 2011 and received before 12:00 am (midnight) Friday, September 2, 2011.
4. I would like a copy of all the governmental e-mail (electronic mail) sent by the Office of the Governor of Texas which was sent on or after 12:00 am (midnight) Tuesday, August 30, 2011 and sent before 12:00 am (midnight) Friday, September 2, 2011.

Since, by definition, e-mail is electronic, I would request that all the records produced pursuant to these four PIA requests be provided in electronic form.

I believe none of the records requested in paragraphs 1 or 2 above meet any of the 54 exceptions to the Public Records Act found in TGC 552, so I will be expecting the itemization of cost for these records within 10 days. As for the records covered by paragraphs 3 and 4 see the paragraphs below on Severability, Exemption, and Redaction. If you have any questions you may contact me by telephone at  414-375-5777. If you need to send written correspondence to me, my postal address is:

John Washburn
N128W12795 Highland Road
Germantown, WI 53022

Definitions: In order to narrow these requests and, thus, obviate any need for your office to exempt or redact any records requested under these PIA requests, the terms found in the PIA requests above are defined as follows:

1. e-mail (electronic mail) is defined by RFC 2822/822 and includes any and all attachments.
2. e-mail header is defined as every element of an email covered by RFC 2822/822 with the exception of the message text and email attachments. Email headers include, but are not limited to, the subject line, the list of FROM addresses, the list of TO addresses, the list of CC addresses, and the list of BCC addresses. Email headers do not include email message text. Email headers do not include any files attached to an email record.
3. e-mail in electronic form is defined as comple email data provided in any of the following data formats:
1. Outlook Message Format (MSG),
2. eXtensible Markup Language (XML),
3. Microsoft Outlook Personal Storage Table (PST),
4. Microsoft Outlook Offline Storage Table (OST),
5. Microsoft Outlook Express Electronic Mail (EML),
6. Mailbox Message Format (MBX),
7. Multi-Purpose Internet Mail Extensions (MIME),
8. or other, non-proprietary file format commonly used for exchanging or archiving email messages
4. Office of the Governor of Texas is defined as any e-mail with at least one address (From, To, Cc, and Bcc) within a domain tree ending in: governor.state.tx.us.
5. Governmental e-mail is defined as an e-mail where every address (From, To, Cc, and Bcc) of the e-mail header is an address within one or more of the following domain trees:
1. a domain tree ending in: state.tx.us; the State Government of Texas. (e.g. www.oag.state.tx.us; the Office of the Attorney General)
2. a domain tree ending in: XX.us where: XX is the two character postal abbreviation for a state, territory, or protectorate. (e.g. elections.state.wi.us and village.germantown.wi.us from Wisconsin)
3. a domain tree ending with the top level domain of .gov (e.g. eac.gov and csrc.nist.gov from the US Government)
4. a domain tree ending with the top level domain of .mil (e.g. pentagon.osd.mil and usafa.af.mil from the US Government)

Severability: This document creates a four open records requests under the Texas Public Information Act where each covers a multiplicity of records (one record per e-mail header and one per complete email). These 4 requests are severable and are included in this single correspondence for administrative simplicity and the thematic similarity of the records requested. It is understood that any delay in the production of records under one request will not delay or otherwise hinder the production of records responsive to the remaining requests.

Severability: The production of records responsive to a single request is severable as well. It is understood that any delay in the production of some records under a particular request will not delay or otherwise hinder the production of other records responsive to that request.

Exemption from Production: If you contend that the any of the above records, or any of the parts thereof, are exempt from production, you are required hereby to state in writing, and with particularity, the statutory authority for the exemption and the reason or reasons for your conclusion that the record or parts thereof are so exempted. If you are unsure if a record, or any of the part thereof, is exempt from production, please submit the record to the Office of the Attorney General of the State of Texas for an opinion on the correctness of the claimed exemption. Such opinions from the Attorney General satisfy the requirement to state with particularity the statutory authority for the exemption.

Redaction: Redaction itself constitutes a claim for exemption for the portion of the record(s) redacted. As such you are required hereby to state in writing, and with particularity, the statutory authority for any redactions and the reason or reasons for your conclusion that the redacted item is exempt from disclosure.

Promptness: The Texas Public Information Act provides that a response to these PIA requests is due in ten business days. If the requested records cannot be produced in this time frame, then it is expected that the PIA process as illustrated by the PIA FAQs page produced by the Texas Attorney General will be followed.

Entanglement: The Texas Public Information Act provides that that any record subject to a PIA request must be preserved until the PIA request is either fullfiled or any disputes arising from the PIA request have been resolved.

Thank you for your time on this matter.

In Liberty,
John Washburn

Messing with Texas - Take 2

Governor Rick Perry has decided to seek for the nomination for President of the United States of the Republic Party. Because of this, his abominable practice of destroying Public records after 7 days has come to light again. See this article from the Houston Chronicle or this item by Ben Smith of Politico.Com.

Because I would like these records archived for posterity, I am reviving the program of requesting emails before they are destroyed. From my prior experience (see here and here) it will cost about $1200 per week to request, pay for, retain and archive the emails from the Office of the Governor of Texas.

That comes to $64,500 $62,400 in order to sustain this effort for one year. Please consider making a donation to fund this effort.