Memo shows attorney challenged Blunt's policy before firing

ST. LOUIS -- A former staff attorney for Gov. Matt Blunt sent an internal office memo challenging his boss' stance on deleting e-mails just weeks before the attorney was fired, according to a copy of the memo obtained by The Associated Press.

The memo's existence and content contradict public statements made by Blunt and his top officials after the attorney was fired in late September. Blunt officials have repeatedly said Scott Eckersley never challenged -- verbally or in writing -- their policy of deleting office e-mail and brought up the issue only the day he was fired.

The memo also offers the strongest support yet for Eckersley's claim that he did advise Blunt's office about his e-mail retention policy, for which he says he was fired. Blunt has said the 30-year-old deputy legal counsel was fired because of shoddy performance and conducting personal business at work.

The story has consumed political watchers in Missouri, though it's unclear whether the details of Eckersley's firing and the way Blunt's office handles e-mails will create any long-term political discomfort for the governor. Blunt is widely expected to seek a second term and it is probable he will face Democratic Attorney General Jay Nixon.

In the Sept. 14 memo, Eckersley said "e-mails can be 'public documents'" -- a legal opinion that was at odds with public statements Blunt and his spokesman, Rich Chrismer, were making at the time.

The memo also pointed out that Blunt himself had signed a records-retention policy in 2001 when he was secretary of state that said state agencies must retain records including "all 'general communication'" for three years. The e-mail stated that an updated retention policy kept that requirement.

The memo used all capital letters to emphasize that e-mails are considered public under the Missouri Sunshine Law because the statute covers any document "written or ELECTRONICALLY STORED, retained by or of any public governmental body."

The memo is not clear-cut in its stance that e-mails are public documents. It says that not every e-mail is automatically public because the Sunshine Law excludes letters or documents that a government agency receives but does not retain.

Parts of the memo appear to show Eckersley was a loyal staff attorney, helping Blunt officials fashion a response to criticism over their policy.

The memo was written in response to an article in the St. Louis Post-Dispatch about the e-mail retention policy. The memo says the reporter is in error to assume that specific e-mails mentioned in the article are public.

The memo also suggests a way Blunt can handle the story as a campaign issue against Attorney General Jay Nixon, Blunt's presumed Democratic rival in the 2008 governor's race.

"If we want to attack the AG on this we should not ask the post-dispatch why they have not requested letters from Nixon, we should ask Nixon to clarify the retention schedule as one of the members of the commission that created it," the memo says.

A copy of the memo was provided to The Associated Press by someone who had access to it but requested confidentiality because its release had not been authorized. It was sent to two people, including a Blunt aide.

It is not clear whether any of the recipients passed the memo on to Blunt, his chief of staff, Ed Martin, or anyone else in Blunt's office.

Eckersley said he wouldn't comment directly on the memo, citing attorney-client privilege. He repeated his claim that he sent several memos like it and said they all made the same argument. He said the memos went to Martin, Chrismer and legal counsel Henry Herschel.

Blunt officials have repeatedly denied that claim. On Oct. 30, Blunt's chief counsel for the Office of Administration, Rich AuBuchon, told the AP:

"Mr. Eckersley never once voiced a concern, never once wrote an e-mail, never once talked to other employees in the office evidencing any concern that the governor's office was not complying with the Sunshine Law or any record-retention policies."

On Friday, Chrismer reiterated that Blunt's office has "no record that Scott Eckersley ever wrote or stated that the practices of our office were inconsistent with any law or standard on record retention, and I cannot comment on a document that any news outlet has so little confidence in that it will not provide it to me."

The AP declined to give a copy of the memo to Blunt's office because doing so could reveal its source. The AP sent Chrismer an e-mail containing the verbatim content of the e-mail without identifying the sender.

When the memo was sent Sept. 14, the Blunt administration was insisting that e-mails were not public records as it faced mounting criticism for deleting e-mails that were sought through an open-records request from the Springfield News-Leader.

Blunt suggested in mid-September that e-mails were not required to be retained for three years like other public records.

"Nobody saves e-mails for three years," he told the Post-Dispatch.

The administration appears to have changed its stance since then.

Blunt told the AP on Sept. 19 that he saves some e-mails and deletes others depending on the nature of the message. But "we don't keep every e-mail that we receive and send for three years," Blunt said. "I don't think very many people do."

On Nov. 1, Blunt said some e-mails are public, specifically referring to those that are later incorporated into written documents that are archived.

After Eckersley was fired Sept. 28, AuBuchon sent a letter to reporters claiming Eckersley never asserted his views about the record-retention policy until the day he was fired.

AuBuchon's letter said Eckersley had been tardy to work, had argued vehemently with Herschel and had done personal business at work. AuBuchon provided a box of documents to support his claims -- including e-mails showing that Eckersley helped his father's business from his work computer.

A timeline AuBuchon provided to outline Eckersley's work problems started with an event on Sept. 21 -- one week after Eckersley sent the memo on e-mail retention.

Missouri's Sunshine Law specifically defines a "public record" as "any record, whether written or electronically stored," that is retained by a public governmental body.

Open-government advocates say that broad definition clearly includes e-mails. They note that the Missouri law even outlines restrictions on the use of e-mails by elected officials who would attempt to circumvent required public meetings.

But unlike some states, Missouri law doesn't explicitly list e-mails as public records. The closest the state gets is a set of state guidelines that note that "e-mail messages that document decisions, policies, procedures, resource expenditures, operations or delivery of services are evidence of official state business."