Private Emails Could Be Fair Game

Thanks to S.C. Gov. Mark Sanford, thousands of email messages that politicians and other state officials thought were exempt from public disclosure could end up seeing the light of day.

By conducting state business from a private email account, Sanford unintentionally created a new public record – at least according to his legal counsel (sort of) and other lawyers who spoke with FITS.

“Private email accounts routinely used to conduct public business can create a FOIA situation,” said an open records attorney who spoke with FITS.

So, does a “FOIA situation” (referring to the state’s Freedom Of Information Act) mean that a politicians’ private emails will actually end up being subject to public disclosure?

“The governor has certainly set a new precedent with respect to the disclosure of personal emails,” the attorney told us. “His legal counsel has acknowledged at least a partial disclosure obligation with respect to these documents.”

Just under 200 of the 3,000 emails released last week by the governor’s office came from Sanford’s private email account – which the governor’s office says represents the extent of his use of that account for official purposes.

We doubt that to be the case, but the fact that his office did release this limited stash of private communications could be a “game-changer” for transparency advocates.

Additionally, sending and receiving private emails on a state-owned computer could create a “FOIA situation” … or rather a FOIA obligation.

FITS founding editor Sic Willie, who served in Sanford’s office from 2003-05, says that governor and his staff were warned by former Chief Legal Counsel Henry White not to conduct state business on private emails.

“The rules were pretty simple,” Sic recalls. “We weren’t supposed to do anything on personal emails while we were in the office, and we weren’t supposed to write anything on our state accounts that we didn’t want to read about in the newspapers.”

Still, Sic says, that didn’t stop most members of the staff from conducting political business on private email addresses – using state computers.

“We all of broke those rules,” he said.

So did the governor.

Two years ago, FITS submitted a FOIA to the governor’s office seeking access to Sanford’s “Filemaker” computer, a collection of the governor’s private data that was stored on the State House grounds.

Within days of our request being made, sources say the computer which included this data was removed from the governor’s office.

S.C. Attorney General Henry McMaster – a man we routinely find fault with – seems to have a pretty good handle on what FOIA policy should be.

“When in doubt, disclose (the) requested information,” McMaster wrote in a 2008 guide to the Freedom of Information Act. “When in doubt, release the document.”

Of course, our bet is that right now politicians all across South Carolina are “deleting” instead of “disclosing” their personal emails.

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