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.