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PROMISES, PROMISES: Records shielded by candidates

By Stephen Braun
Associated Press / November 30, 2011
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WASHINGTON—In the final weeks of Mitt Romney's term as Massachusetts governor, a small team of aides combed through statehouse filing cabinets. They filled more than 630 cartons with papers destined for the state archives as the primary documentary legacy of his administration. One floor, though, was almost completely off limits to them: Romney's inner sanctum, his third-floor office.

The former legislative affairs director who headed the archiving effort, John O'Keefe, recalls that his team was given a stack of Romney's public schedules spanning four years and a limited variety of other documents from the governor's executive office, but not much else. "We were told we were not in charge of archiving the third floor," he says.

Three weeks before Romney left office in January 2007, O'Keefe's team turned the cartons culled from the statehouse over to archives officials and left 290 more boxes -- mostly leftover bulk records from prior administrations -- that were authorized for shredding. But the Massachusetts Republican's personal gubernatorial records -- including emails exchanged with his aides, private calendars and other materials -- were unaccounted for, say O'Keefe and others who worked in the Romney administration at the time.

"They were either left with the governor or were left behind," said O'Keefe, now city manager in Manchester, Vt.

The mystery deepened when the chief legal counsel for Romney's Democratic successor, Gov. Deval Patrick, said recently that just before Patrick took office, material on a state government web server that housed Romney's emails was erased. Top Romney aides also bought and removed their state-issued computer hard drives, and remaining leased computers were replaced. Romney said he followed the law in authorizing the purge, and his campaign aides said their actions were based on a 1997 Massachusetts court ruling that all governors' records are private.

Romney's selective policy toward public access and preservation of his executive records raises stark questions about how transparent his administration would be if he were to become president.

He's not alone. Other leading candidates for the presidency -- incumbent Barack Obama and Texas Gov. Rick Perry -- have touted their commitment to transparency. But their administrations also have been selective at times in the records they disclose. They have limited, stalled or denied access when it suited their purposes.

"What I wish Americans could expect is a politician who talked a good game and walked a good game, too," said Ken Bunting, executive director of the nonpartisan National Freedom of Information Coalition. "The reality is everybody gives lip service to transparency and accountability."

Romney's submission of paper documents to the Massachusetts archives was made "in the interest of transparency and to help provide a record of his time in office," said Eric Fehrnstrom, a senior campaign adviser. But the holdings in the archives are far from comprehensive. An Associated Press reporter sent from Washington earlier this fall spent a week examining the Romney archives, but did not find paper copies of any emails to or from Romney or any internal calendars or in-house memos -- all commonly used by governors. There are no state archives records accounting for what happened to those materials.

A self-described champion of open government, Obama signed an executive order committing to transparency the day he took office in January 2009. In September his administration issued a "national action plan" requiring all agencies to take detailed steps to improve openness.

His administration's performance has bright spots but has not nearly fulfilled Obama's pledges. The federal government responded to fewer records requests in 2010 even as the numbers of requests grew, according to an AP study earlier this year. Agencies often frustrate requests with delays -- such as the administration's slowness in responding to the AP's requests for records related to government loans to the now-bankrupt solar company Solyndra.

Perry has touted his decision ordering Texas state agencies to post electronic data online, but he has also curtailed access to his private calendars and travel records. As Perry revved up his presidential bid last September, his chief of staff, Jeffrey S. Boyd, sent emails to the governor's staff, warning them of growing records requests and ordering, "Do not utilize email unless it is essential to do so."

The growing use by government agencies and political campaigns of new channels of electronic communication, including text messages, online videos and social media services, has opened new dimensions in the availability of public records. But candidates haven't been especially transparent.

Newt Gingrich agreed to release payment records of his consulting work for the Federal Home Loan Mortgage Corporation only after the news service Bloomberg revealed details of his role with the government-sponsored agency. Rep. Michele Bachmann's staff declined AP requests for receipts and other records that would show how she spent millions in government money to cover payroll and other expenses, instead offering only limited information already published by the House.

The administration of Mississippi Gov. Haley Barbour, who decided not to enter the race, told the AP it would cost $30,000 to provide comprehensive electronic and paper files from his second term. And the office of Minnesota's Tim Pawlenty, who ran but then dropped out, estimated a cost of $1,150 to provide the AP with records of just one of dozens of out-of-state trips he took while governor.

Romney's purge of electronic records is matched by the Perry administration's policy of deleting all inter-office emails older than one week -- a policy started by his predecessor, former President George W. Bush. Perry spokeswoman Allison Castle said Boyd's email warning was simply "to remind employees to only use email when necessary."

"There's the potential for a lot more raw information than in the past as emails and other electronic communications replace phone and face-to-face conversations," said Peter Scheer, executive director of the First Amendment Coalition, a nonprofit public interest group. "The problem is we're seeing officials and governments moving more and more to shield those materials from public access."

Only about one-quarter of the 630 cartons of Romney paper records are available for inspection at the Massachusetts archives. State legal officials have yet to say whether the 1997 court ruling allows access to the other material. Even if they do, Assistant State Archivist Michael Comeau said, staff shortages and time-consuming redaction checks could extend delays close to the 2012 election. More than 75 cartons examined by the AP revealed staff and legislative documents but no internal materials written to or from Romney himself -- except for ceremonial bill-signing and official letters.

As governor, Romney's careful line on providing records was based on a Massachusetts Supreme Judicial Court ruling that "the governor is not explicitly included" among agencies covered by the state's Public Records Law, which generally requires agencies to submit to records requests. Other governors since 1997 have interpreted the ruling similarly.

Archived records from Romney's communications office -- among the few third-floor materials that were saved -- show that between 2003 and 2007, his administration at times provided documents requested by media and others. But in many cases, Romney officials either turned down requests or offered partial responses, saying the requests were "overly broad" or that disclosure "would not serve the public interest."

"It's the discretionary nature of the responses that's worrying," said Gavi Wolfe, legal counsel for the Boston office of the American Civil Liberties Union. "If they're in the public interest and don't impinge on privacy or investigations, records should be made public."

The AP submitted detailed questions to Romney about how his administration handled public records when he was governor, but the campaign provided only a brief statement: "The governor's office in Massachusetts is not subject to the state's public records law. As a legal matter, it is not required to disclose any documents."

Fehrnstrom, Romney's chief spokesman during that era, said the Romney campaign does not possess any remaining gubernatorial records outside of the Massachusetts archives.

Theresa Dolan, who was director of administration under Romney and six previous governors, said prior administrations had engaged in limited electronic house cleaning, but the selling of hard drives to Romney's aides was not common practice.

After The Boston Globe first reported that his aides had purged electronic files, Romney defended the move, saying the deleted files might have contained confidential medical, judicial or personnel records. Still, when Romney's archive team found hundreds of Social Security numbers and other confidential files at the end of his administration, they separated those materials from thousands of other documents that were turned over to the archives. O'Keefe recalled that anything "confidential in nature" was turned over to a private vendor for shredding. That shredding, O'Keefe said, was approved by the state's Records Conservation Board.

The board's files do not mention any purged electronic files. While Massachusetts governors are not subject to disclosure requirements, they are still obliged to preserve both electronic and paper records, said Laurie Flynn, chief legal counsel for Secretary of the Commonwealth William F. Galvin.

Suggesting that Romney's Massachusetts administration "deliberately sought to delete public records" in advance of his 2007 presidential run, the Democratic National Committee has pressed three separate Massachusetts public records requests for more background on the purge. Romney's campaign has responded with its own request to Patrick's office asking for any evidence of collaboration between his staff and Obama re-election officials.

Wolfe, the ACLU lawyer, said the electronic purge set an "alarming" precedent: "I would be concerned about the chief executive wanting to shield the actions of his administration from public scrutiny." Romney has waved off those concerns, saying that if elected, his presidential administration "would do what's required by the law and then some."

In three years in the White House, Obama set an even more ambitious standard. Obama signed an executive order on his first day in office, committing publicly to improving transparency and setting clear goals for federal agencies to respond quickly and expansively to records requests. His directive led to the opening of White House visitor logs and plans to improve response times and declassify outdated secret documents. Earlier this year, the administration followed up with an "open government partnership" aimed as a template for other world governments.

"The president has set a historic standard when it comes to openness," said campaign spokesman Ben LaBolt.

But many of Obama's broad pledges have not been met. In the face of criticism, the Justice Department abandoned a proposal that would have allowed officials to pretend that some government files didn't exist when people asked to see them. And the government completely turned down records in one-third of all records requests in 2010 -- even censoring 194 pages of internal emails about Obama's Open Government directive.

The White House and Energy Department have been selective about turning over records related to the GOP-led congressional investigation of Solyndra. The AP pressed three separate appeals for records in September, but Energy Department officials said they would take months because of the number of documents and requests to read them. In early October, as Congress threatened to issue subpoenas, administration officials quickly released thousands of pages and DVDs filled with emails.

White House officials would not comment on the sudden shift, but LaBolt said, "The president and this administration are changing the ways Washington works in terms of transparency."

In Texas, Perry has made similar claims, pointing to broad swaths of data now available online -- from state agency payments to death certificates. And though Texas provides general expenditures for Perry's security guards when he travels, Perry has opposed viewing of travel vouchers and other detailed items, citing operational security.

"The people of America aren't seeing the real Rick Perry," said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. "They may get a glimpse of him on the campaign trail, but the real record has been hidden and carefully parceled out."

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Associated Press writers Brett J. Blackledge, Matthew Daly and Jack Gillum contributed to this report.

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