Friday, September 18, 2009

Missing the Boat About Missing Emails

At Tuesday night's candidates forum, and several times at Thursday night's candidates forum, challenger Alex Selvig repeated his request that incumbent District 9 City Councilor Mark Ciommo release all his emails to or from Michael Kineavy, Mayor Thomas Menino's chief of policy and planning, who is involved in the Delete-Delete-Gate scandal.

Selvig responded incredulously to Ciommo's estimate that providing the documents would take some time -- saying instead that it should take only 30 seconds to satisfy his request. And challenger Abigail Furey said that Ciommo and his staff "shouldn’t be looking through [Ciommo's] emails, deciding what to release and what not to release.”

On both counts, these two challengers over-reached. And in saying that constituent service work would be compromised by having to provide the documents, Ciommo over-reached, too.

Ciommo Says Response Will Take Time

Ciommo responded Thursday to Selvig's document request by saying that he would respond and provide the documents "as if it were a public records request." (An odd statement given that verbal requests for public records are as valid as written requests, according to the Secretary of the Commonwealth's Guide to the Massachusetts Public Records Law, p.2.)

Ciommo noted, however, that he has approximately 8,500 emails on his computer, such that the process of delivering the public records may take some time -- presumably for he and his staff to search for the records, and then review them.

That explanation didn't satisfy Selvig -- who twice criticized the time estimate by arguing that the computer search should only take 30 seconds.

Exemptions in the Massachusetts Public Records Law

But Selvig missed entirely the potentially labor-intensive side of responding to a public records request: inspecting the individual documents in order to determine if each one should be withheld due to legal exemptions to the disclosure requirements of the Public Records Law; and possibly redacting specific parts of each document when that text should not legally be released under the PRL.

The Secretary's Guide identifies the exemptions to public records disclosure -- 18 exemptions listed in the law as (a) through (s) [(k) has been repealed]. The exemptions range from redacting specific kinds of personal information to non-disclosure of documents that might jeopardize public safety.

Most of the exemptions are highly unlikely to apply here. But the privacy exemption (c) may require redactions in some emails, and the deliberative process exemption regarding developing policy (d) could require withholding some documents. (Kineavy's job, after all, is chief of policy and planning.) If Ciommo chooses to invoke (d) to refuse to release any document, however, he must provide a full explanation of it -- such as provide the time/date/to/from/cc/subject for each individual document along with a brief explanation of why it is being withheld.

And Ciommo has 10 days from the receipt of the request for public documents to provide his response -- which might not be the documents themselves, but instead a description of the work effort (and possibly the estimated cost) required to provide the documents.

I suspect that Ciommo will read the writing on the walls and waive any costs related to the work as well as minimize -- if not avoid altogether -- invoking the deliberative process exemption (d). The public interest is rarely served when a legitimate request for public information is withheld pending a substantial fee, or when its release is delayed inappropriately.

The implication in this fall's campaign for city council is clear: Ciommo has every right under the Public Records Law to take days to respond to the request for documents, as well as every expectation to review those documents for privacy information that should be redacted or documents that could legally be withheld. (He may also choose to release the latter documents, anyway.)

Everyone Over-Reaching in the Heat of the Campaign

Selvig over-reached by disbelieving the possibility that Ciommo's time estimate might be reasonable -- yes, it might actually be reasonable -- and Furey over-reached by saying that Ciommo "shouldn't be... deciding what to release and what not to release," because he has those rights and responsibilities as specified under the law itself.

And Ciommo's claim that constituent service work might be compromised by the time it takes to respond to a public records request? Here Ciommo over-reached, too. He and his staff are paid by the public to do both constituent service work and respond to public records requests. If his office can't do both at the same time, then he is giving his opponents on a silver platter a reason that he should not be re-elected.

It must be emphasized that there is a substantial public interest in Kineavy's emails: recovering documents that appear to have been inappropriately deleted; providing documents responsive to a federal investigation into former state Senator Dianne Wilkerson; and providing documents responsive to challenger Abigail Furey's request, as part of the civic organization Brighton Neighbors United, into the process by which the Boston Redevelopment Authority reviewed and approved Boston College's Institutional Master Plan. There is little question that Ciommo's office should release these documents, it's really only a question of how, when, and exactly what.

Let's hope that cooler heads prevail so that the public interest can be served.

Image derived from [redacted] by stallio, provided through a Creative Commons license.

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