Report: Blunt failed to follow records law

Wednesday, March 4, 2009

JEFFERSON CITY, Mo. -- Investigators looking into the e-mail retention practices of former governor Matt Blunt asserted Tuesday that his administration violated Missouri's public records laws.

But investigators decided not to refer the matter to prosecutors.

The report wraps up a nearly 1 1/2-year probe into Blunt's office that began after a former legal counsel claimed he was fired for raising concerns that colleagues were not following public records laws. Blunt has asserted the staffer was fired for legitimate reasons.

Special investigators appointed by the attorney general's office did not delve into the reasons for the firing of employee Scott Eckersley. But their report affirmed his assertions that Blunt staffers wrongly deleted some e-mails and failed to follow the state's open-records laws.

Investigators said the extent of Blunt's personal involvement in his office's public-records failures could not be determined because Blunt refused either to be deposed or interviewed.

Blunt, who did not seek re-election last year, ended his four-year term as governor in January.

"What also has not been determined is why Governor Blunt left office with no public accounting, no explanation to the public, of his administrations' failure to comply with these two laws" regarding record retention and public access to government records, said the report by investigators Mel Fisher and Eric Wilhoit, both former highway patrol officers.

An unsigned, written response on behalf of the former governor, which was made public with the report, asserted Blunt's office did follow the Sunshine Law and had proper document retention policies.

It accused investigators of drawing out the report and described the reference to Blunt not explaining his role as a "transparent partisan jab."

Blunt's response contends there is a difference between documents that must be retained and records that must be turned over if retained and requested under the Sunshine Law.

"To the extent the investigators fail to acknowledge that some correspondence needs not be retained or that many of the e-mails they claim should have been disclosed were not exempt from disclosure, they perpetuate a myth," Blunt's response said.

Under Missouri law, e-mails can be considered public records just like paper documents and thus are subject to open-records requests. How long government records must be kept varies by topic and often comes down to a case-by-case determination by an individual.

For example, an e-mail about bringing cookies to a staff party could be deleted immediately. But records relating to management, financial and policy matters are supposed to be saved for three years. Some documents are to be kept permanently for the state archives.

Then-Attorney General Jay Nixon, a Democrat who now is governor, appointed investigators in November 2007 to look into whether the Republican governor's office was following public records laws. That occurred shortly after Eckersley went public with accusations the office was not doing so.

The investigators concluded Tuesday that:

* Governor's office policies and practices related the Sunshine Law and record retention "were insufficient to ensure proper compliance" with those laws.

The report cites several Sunshine Law requests, beginning with one in August 2007 by the Springfield News-Leader, in which Blunt's office responded that either no records existed or that they were closed. But a subsequent search of backup e-mail tapes, which preserve even deleted e-mails, found scores of e-mails that should have been covered by the requests.

Blunt's response said his staff followed state laws and certainly did not purposely violate Missouri's Sunshine Law. "It is more than fairly debatable" that the deleted e-mail at issue in the August 2007 request "had nothing to do with any management policy or financial matters" of the governor's office and thus would not have needed to be kept, Blunt's response said.

* Former Blunt legal counsel Henry Herschel was unfamiliar with his duties as custodian of records and "lacked knowledge of the Sunshine Law and record retention statutes."

Blunt's response generally defends Herschel. But it acknowledges that, in dealing with ambiguous laws and regulations, Herschel "may have been imperfect in some of his advice regarding the retention of records or Sunshine Law requirements."

An attorney for Herschel said Tuesday that "he acted honestly and ethically" in the governor's office and did his best to interpret unclear state guidelines on e-mail retention.

"It's clear that these guys were trying to do the right thing. They were trying to comply with the law, and we think it's a shame that people are pointing fingers at Mr. Herschel in this report," said Clayton attorney John Comerford.

* There was insufficient evidence to either prove or disprove allegations that members in Blunt's administration ordered the destruction of backup e-mail tapes after an Oct. 31, 2007, open-records request from The Associated Press. Various state employees gave conflicting testimony.

Blunt's response said the governor's office did not order the e-mail tapes destroyed and said the allegation "has become a non-issue."

Emphasizing the conclusion of their case, a bipartisan pair of court-appointed attorneys representing the investigators filed a motion Tuesday dismissing their lawsuit against Blunt's administration.

The state paid both for the investigators and the private attorneys who represented Blunt's office. The total tab: more than $660,000, most of which was spent on Blunt's defense.

A separate, pending lawsuit by Eckersley alleges wrongful termination and defamation by Blunt and several former members of his administration. The state has spent more than $1 million to defend Blunt and his former staffers against that lawsuit.

Eckersley said Tuesday in a written statement: "I am not surprised by the report, because it's what I've said from the start -- these men broke the law."

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