Nixon orders e-mail practices inquiry; Blunt announces new records policy

~ Nixon said he appointed independent investigators to head off criticisms that the inquiry is politically motivated.

JEFFERSON CITY, Mo. -- Attorney General Jay Nixon on Thursday announced plans for an independent investigation into the e-mail retention practices of Gov. Matt Blunt. Hours earlier, Blunt disclosed his plans for a permanent e-mail retention system for state offices that he says goes beyond legal requirements.

The dueling announcements come as Blunt faces growing scrutiny in recent weeks after he acknowledged that administration officials -- including his chief of staff -- delete certain internal office e-mails.

Blunt's order directs the Office of Administration to develop an e-mail retention system for all state agencies, elected officials and other government employees, including judges.

The governor said his announcement, which preceded Nixon's by several hours, was not intended to deflect attention from the attorney general's inquiry, which Nixon had previously hinted was imminent.

Blunt suggested that politics was behind Nixon's investigation. Nixon, a Democrat, plans to challenge the Republican incumbent in the 2008 governor's race.

"The attorney general can appoint as many committees as he wants if he thinks it benefits his campaign," Blunt said from suburban St. Louis, where he traveled Thursday to promote an early childhood education program.

'Response to confusion'

The governor said the new policy is a response to "confusion in state government about e-mail retention."

"That confusion is not acceptable to me," Blunt said.

Scott Eckersley, a former Blunt staff attorney, has said he was fired for offering legal advice on e-mail retention that contradicted actions by the governor and senior advisers, including chief of staff Ed Martin.

Blunt officials responded to Eckersley's allegations, which he made public to reporters, with unusually personal criticisms about the lawyer's work and personal habits, raising questions about possible drug use and saying Eckersley received e-mails at work from a sexually oriented Web site.

Eckersley's former boss, Blunt's chief counsel, also filed a complaint with the Missouri Bar Association that could potentially cost Eckersley his law license.

Heading the Nixon investigation is C.E. "Mel" Fisher, who supervised the patrol from 1989 through 1993. He later spent two years as executive director of the Missouri Gaming Commission. Fisher's special counsel will be Daniel Max Knust, a retired associate circuit judge. They will be assisted by Rick Wilhoit, a retired state trooper.

Nixon, a Democrat, said he appointed independent investigators to head off likely criticisms that the inquiry is politically motivated.

"In order for this investigation to serve its true purpose, we must conduct it without any influence from outside political interests," Nixon said. "That's exactly what we intend to do."

Under scrutiny

Fisher was appointed to lead the patrol by former governor John Ashcroft, a Republican, and to the gaming commission by former governor Mel Carnahan, a Democrat. Knust is a Republican.

Nixon spokesman Scott Holste said the two investigators were chosen for their qualifications, not for political reasons.

"He appointed the people with the best credentials," he said.

The role of the 2008 Blunt-Nixon race in the e-mail debate seems to be increasing. On Wednesday, the state Republican Party made a bulk request for three years' worth of e-mail messages from 19 Democratic lawmakers. Party spokesman Paul Sloca told The Kansas City Star that the request was intended to determine whether Democratic legislators are using public computers for private business.

"We want to see if they can stand the heat and stand similar scrutiny," he told the newspaper.

In a letter to colleagues, state Rep. Paul LeVota, D-Independence, called the GOP request "an act of harassment" but urged those who received Sloca's request to comply.

Democrats also criticized the governor's order for covering only e-mail accounts ending with the ".gov" suffix. That prevents public access to state business that could be conducted from private e-mail accounts, including those used for political purposes, said Jack Cardetti, a state Democratic Party spokesman.

The Missouri 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. But unlike some states, Missouri law doesn't explicitly list e-mails as public records.

The closest the state gets is a set of 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."

Such records must be kept for three years before being destroyed. Those rules were adopted in 2001 by the State Records Commission -- whose chairman at the time was then-Secretary of State Matt Blunt.

Automatic retention

Blunt said that a more encompassing e-mail policy will eliminate the need for individuals to make their own determination about which messages are public records, he said.

"Because retention will be automatic and permanent, state employees will be released from making case-by-case decisions on what to save," Blunt said.

"All state e-mails will be retained and be open to the public for its inspection, subject only to the limited and well-defined exceptions where legal and privacy concerns apply."

At the same time, the new policy does not suggest that the Blunt administration was falling short of existing standards, the governor said.

"The new policy does not suggest there were violations," Blunt said. "The e-mail policy was compliant with the law."