COLUMBIA — State government watchdogs and the state’s leading media attorney harbor serious concerns about a new records retention policy announced by Gov. Nikki Haley’s administration last month, saying the new agreement gives the governor’s office too much discretion to delete certain email exchanges and could easily lead to abuse.
The watchdogs said the new agreement represents a missed opportunity.
“Too much of our state is the fox guarding the henhouse when it comes to accountability, and this is no different,” said Ashley Landess, president of the libertarian-leaning S.C. Policy Council.
Late last year, The State newspaper and The Post and Courier revealed that Haley’s office had deleted some emails — a practice the governor’s office said was in full compliance with the old retention policy. However, after those news stories, Haley’s office worked with the state Department of Archives and History to develop a new policy for how emails and other records would be saved.
The retention policy Haley’s administration inherited, in place for four decades, contained some guidelines that were subject to interpretation, though state law barred the destruction of records of “long-term or enduring value.”
The new agreement was released last month, lauded as a major milestone in improving transparency by the governor’s office and described as historic by Archives Director Eric Emerson.
Its aim, Emerson said, is to preserve records of long-term, historic value. The policy calls for the governor’s office to save and eventually turn over to the Archives a range of records.
But it also defines certain records that the governor’s office can destroy.
They include:Temporary records created for internal purposes, including “preliminary drafts of letters, memoranda, or reports, and other informal materials that do not record decisions;”
Documents that are “superseded or outdated;”
Information in a form used in casual conversation.
John Crangle, executive director of Common Cause of South Carolina, takes issue with the fact that the governor’s office is given the legal authority to delete any emails.
“I think the discretion is so susceptible to abuse, particularly when you have politicians and political operatives making that decision rather than people with a more objective perspective on whether the information should be retained,” he said.
Jay Bender, an attorney for the S.C. Press Association, said he’s also concerned about the new policy.
“It’s troublesome if you have a penchant for covering your tracks, which seems to be the case with this administration,” he said.
A December report by The Post and Courier found Haley’s office deleted emails that provided insight into the governor’s directives to a committee studying the implementation of state health insurance exchange.
The state’s Department of Health and Human Services provided the emails to the newspaper in response to a Freedom of Information Act request.
Haley’s office failed to include the messages in its response to a separate, nearly identical FOIA request, saying the emails had “not been retained” despite providing other internal emails written in the same time frame as the messages the administration failed to provide.
At least one other South Carolina gubernatorial administration also deleted emails.
Former Gov. Mark Sanford’s office deleted a massive trove of emails from state-provided accounts during the administration’s final days and turned over only a small amount of the emails from the administration’s eight years in office to the Archives.
Who gets to pick?
Crangle said the Archives Department shouldn’t determine what records get preserved.
“Why can’t they just put all the records in the Archives when they come in?” he asked.
Emerson responded to questions about the new policy by saying that it doesn’t make sense for the governor’s office to turn over all of its records.
That’s because the Archives Department has a staff of 26 people and doesn’t have the ability to “clean out all the spam and junk email and try to determine what is and is not worth saving,” he said.
Emerson noted that the goal of the Archives doesn’t necessarily mesh with the issues of transparency and responsiveness to the Freedom of Information Act.
“We’re looking for stuff that’s going to be of long-term value. Media may be looking for issues that are just pertinent to a current issue,” he said.
Landess with the S.C. Policy Council said historical concerns shouldn’t be the issue.
“The public has a right to see every action taken on public time — period,” she said. “The test is not ‘will people care about this 100 years later?’?”
The state Budget and Control Board, which provides information technology services to much of state government, does not have unlimited electronic storage capacity for emails and other data, according to a spokeswoman.
But she said agencies that use the board’s services determine their own storage needs based on business and legal requirements.
More electronic storage space can be purchased.
Haley spokesman Rob Godfrey said the new retention policy is a major improvement.
“Governor Haley is proud of the fact that her office has taken another historic step toward making this the most transparent administration in our state’s history,” he said in a statement. “Let’s be clear, we adopted the same policy that has been used by previous administrations, but, even as we preserved thousands of records and correspondence, we found room to strengthen the policy — it’s the right thing to do. If we find room to strengthen it further, we will do so.”
Godfrey said the administration was the first to take the retention recommendations of the Archives, and those who have issues with the new policy are welcome to take them up with Emerson.
Landess said an improvement on the old records policy shouldn’t be the standard.
“It’s sort of like saying everything has been done wrong for years and we’re going to do it partly right, so we get credit for it,” she said.
Haley herself has not sent email from her state account very often since it was revealed in media reports that her administration had been deleting some official emails.
Godfrey said the governor primarily meets with people face-to-face instead of emailing them.
A FOIA request for all emails sent by and to Haley in the weeks that followed the revelation that her administration had been deleting emails showed Haley had sent only a few emails, which were unrelated to state policy, during that time.