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Private government emails raise transparency concerns

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MONDAY, Jan. 7 — Ingham County Commissioner Mark Grebner said it’s a necessity for public officials to use private email to conduct public business. Otherwise, he argues, nothing would get done.

But a recently released set of “good government” guidelines from Gov. Gretchen Whitmer strides in the opposite direction, effectively banning the use of private email accounts among state employees for state-related business.

The recent directive doesn’t apply to counties and cities, but do the same principles apply? And just how many elected officials are using private email servers? A recent review of county governments near Greater Lansing revealed some key disparities. And it appears several leaders prefer to conduct business through private channels.

Besides Grebner, Commissioners Carol Koenig, Todd Tennis and Randy Schafer listed private email addresses on the county website. They — and nearly every other commissioner on the board — also regularly receive county emails to their private accounts as well as to their county-funded email addresses.

And that’s where the Michigan Press Association spots potential problems.

“It provides an opportunity to evade FOIA responsibilities,” explained association attorney Joe Richotte. “The idea here is to give people meaningful oversight of government operations. With private emails, you’re entrusting the very people under the microscope to be honest and responsive. Nobody wants to be in that position.”

Grebner said he routinely discusses county business within the private confines of his personal email account. He said public meetings have developed into more of a formality than an actual forum for discussion. The idea that public officials aren’t having private, behind-the-scenes conversations is “total bullshit,” he emphasized.

“If you don’t like it, you should sue me,” Grebner added. “We wouldn’t get anything done otherwise.”

Receiving county-related emails to private email addresses isn’t so much the problem. But when multiple officials have an outlet to discuss county-related business outside the reach of the county’s Information Technology Department, it can pose some clear obstacles to Michigan’s Freedom of Information Act.

FOIA provides a tool for inquiring minds to pull public information from public agencies. Written communication between officials regarding government business has long been considered public, as outlined in state statutes. Constituents, with very few exceptions, are legally entitled to the release of that information.

However, Grebner wants to maintain discretion over what stays private and what goes public. The “political gossip” that often fills his private inbox could otherwise lead to a potential defamation lawsuit, he maintained.

Governments agencies at both the state and local level can search keywords to locate responsive emails for any given FOIA request. But those employees aren’t able to plug into private email servers to conduct those same searches, creating an honors system for officials to independently comb through and produce their own records.

“I’m also not saying that nothing should be public,” Grebner added. “There needs to be a balance there.”

FOIA coordinator Becky Bennett also serves as director for office of the county’s Board of Commissioners.

Emails obtained by City Pulse show she regularly loops in private accounts to emails sent to county officials. “It’s just everywhere,” said Koenig, who said she uses her AOL account only for added convenience.

Koenig also said she plans to amend the county’s ethics policy (based on Whitmer’s recent directive) to further limit the ability for her colleagues to talk privately about government business with one another, vendors and other county employees. Open government is important for a functioning democracy, Koenig emphasized.

State records revealed in the wake of the Flint Water Crisis showed that state leaders may have used private email accounts as a way to dodge disclosure of their communications under FOIA. Whitmer’s directive could help to bolster accountability for state employees and eventually erode barricades to accessing that public information.

“State government must be open, transparent and accountable to Michigan taxpayers,” she said in a release.

Commissioner Thomas Morgan said public bodies can’t shield their conversations from the public except in “extremely limited” cases — like for the discussion of legal strategies and real estate negotiations. FOIA only carves out a specific list of exemptions that allow for a narrow degree of off-the-record, government business.

Bennett said commissioners list the contact details of their choice and noted most emails are accessible through FOIA because they’re looped into other county accounts regardless. But other county officials said inaccessibility of private emails could provide too much discretion for officials to decide what remains private.

“It certainly warrants a question and conversation,” added County Clerk Barb Byrum. “I completely understand how it could be a problem, especially when looking at FOIA, transparency and how taxpayer dollars are used.”

Tennis started using a Gmail account when his county email address wouldn’t sync with his Blackberry and he hasn’t turned back. He recognized the potential barrier to the adequate fulfillment of FOIA requests but noted plenty of other opportunities, like telephone calls, when conversations can remain out of the public eye.

“If I received some type of request for access to my private email, I’d be happy to turn that over,” he added.

Three commissioners in Eaton County also exclusively provided private email contacts online, as well as one commissioner each on the boards in Shiawassee and Livingston counties. The entire board of commissioners in Clinton County also appears to use only private email addresses, according to county website listings.

Jackson County was the only neighboring county government that appears to depend entirely on county-funded email accounts. It’s not a legally required to connect elected officials to a singular, searchable email filing system, but Jackson County Commission Chairman James Shotwell labeled it a “best practice.”

“It’s not a mandate, it’s just how we choose to operate,” Shotwell explained. “It provides an opportunity to keep these personal and county-related affairs separated. This way, when we get a FOIA, we can also do a proper search and find the records. It keeps everything in one place, and it’s easily connectable to the county systems.”

Schafer already changed his online listing and also voiced plans to discuss the topic at an upcoming meeting.

Richotte also advised other elected leaders to take a similar path forward. He recognized that officials in Michigan are legally entitled to a narrow degree of blunt, off-the-record communications, but he cautioned officials against taking overly broad steps to conceal their email communications through the use of private email servers.

“This could help minimize the opportunity for abuse from public officials and give some added protection to the community,” Richotte added. “The public has already decided that your desire for confidentiality is not important to them. It’s already decided as a matter of statutory law and that needs to be respected.”

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