Created on Monday, 10 December 2012 Written by MELINDA DESLATTE,Associated Press
BATON ROUGE, La. (AP) — Top officials in Louisiana Gov. Bobby Jindal's administration used personal email accounts to craft a media strategy for imposing hundreds of millions of dollars in Medicaid cuts — a method of communication that can make it more difficult to track under public records laws despite Jindal's pledge to bring more transparency to state government.
Emails reviewed by The Associated Press reveal that non-state government email addresses were used dozens of times by state officials to communicate last summer about a public relations offensive for making $523 million in health care cuts. Those documents weren't provided to AP in response to a public records request.
Jindal, now in his second term, has become a leading voice among Republican governors and is considered a potential presidential candidate. It's unclear whether he knew his top staff used private accounts to conduct public business. The practice folds into a national debate over the use of personal email accounts by government officials to discuss official business.
The issue was a prominent one during the administration of former Alaska Gov. Sarah Palin, and the practice occurred during former Republican presidential candidate Mitt Romney's term as Massachusetts governor.
Palin's use of private email accounts as governor prompted a lawsuit in which the Alaska Supreme Court ruled that officials using private email accounts for public business need to keep documents "appropriate for preservation" under the state's records management act. In response, her successor has instructed employees to use state email for conducting state business.
While governor in Massachusetts, Romney used two private email addresses to communicate with aides, develop policy and political strategy and edit op-ed articles and press releases. The communications were legal under Massachusetts law, but state public officials deemed them public records and subject to archiving.
The head of a nonpartisan watchdog group that tracks public records issues said government officials often use private email accounts to try to sidestep disclosure laws designed to provide sunshine in government.
"Absolutely people use private accounts to hide things," said Kenneth Bunting, executive director of the National Freedom of Information Coalition, based at the University of Missouri. "If government business is conducted or information about it is sent or received on personal computers or through personal email accounts, that does not keep it from being the public's business."
While some states consider electronic communications public material and subject to the same restrictions as paper records, many others provide little or no oversight. At least 26 states view the use of private emails as public records, but the rest have no clear rules or prevailing case law on their use.
The email exchanges in Louisiana took place this past summer, as the Jindal administration was planning steep reductions to programs for the poor and uninsured because of a drop in federal Medicaid funding.
Participants included Jindal's top budget adviser Kristy Nichols, health care secretary Bruce Greenstein, Greenstein's chief of staff and health policy adviser, and Jindal's communications staff. Jindal was not included in the emails, and his office hasn't responded to a question about his knowledge of them.
The dozens of conversations held outside the state's official email system covered subjects such as press releases, responses to news coverage of the budget cuts, preparation of an opinion column to be submitted by Greenstein to newspapers and complaints about reporters' coverage. The emails were sent mainly through accounts administered by Google and Yahoo.
In one exchange, Calder Lynch, a health policy adviser to Greenstein, directs a communications staffer to send certain types of items to Lynch's personal Gmail account, rather than to use his state government email address.
The emails were provided to AP by an administration official who participated in the discussions and who asked not to be identified because he wasn't authorized to release them.
Jindal campaigned for his first term on a platform of providing more transparency in government.
However, the emails in question weren't among more than 3,800 documents and emails provided to AP by the Department of Health and Hospitals in response to a request for information on discussions surrounding the health care cuts.
Louisiana's public records law states that all documents used in "the conduct, transaction or performance" of public business are considered public except in cases where there is a specific exemption.
Administration officials didn't respond directly to questions about whether they were using private email accounts to shield conversations about public business from disclosure.
"Certainly we believe that conducting public business even when using personal means of communication is subject to public records law," Nichols, the governor's commissioner of administration, said in a statement.
Jindal spokeswoman Shannon Bates agreed with Nichols' assessment and said the governor's office encourages all officials to conduct state business on state accounts.
Bates didn't directly answer an emailed question about why she and Jindal communications director Kyle Plotkin sent multiple group emails in July to Greenstein, Nichols and DHH employees using their personal email accounts when talking about news organizations' coverage of the Medicaid budget cuts.
DHH spokeswoman Kristen Sunde said the department agrees "any state issues discussed over electronic communication are subject to public records law, regardless of the type of account used."
It's unclear how department attorneys and computer experts who do the leg work in responding to public records requests would know to check individual employees' personal email accounts for documents complying with a request.
Also, experts say, there's no certainty the individual won't delete public records from a personal account rather than turn them over.
"You're the only one really who can cough it up," said Robert Travis Scott, president of the Public Affairs Research Council of Louisiana, which advocates for transparency in state government. "It does lend itself to a way of getting around the law, if it's not properly handled."
Sunde didn't answer a question about why the emails that involved non-state accounts weren't included in the agency's response to AP's public records request.
She said DHH staff uses state email accounts for work-related matters, but may use a personal account if employees are working remotely, have limited access from a mobile device or are encountering difficulties with the state email server. Nichols offered a similar explanation.
After Louisiana's federal Medicaid financing rate dropped, Jindal decided the largest share of the Medicaid reductions would fall on the LSU-run hospitals that care for poor and uninsured patients. The governor is pushing to shift more care to private hospitals.
In a July 27 email exchange, six administration officials discussed how to respond to LSU's announcement of where it would make its budget cuts.
Nichols, then Jindal's deputy chief of staff, talked of the need to include a reference to "long term strategic reform" in the official administration response. Plotkin, the governor's top communications adviser, struck the word "challenging" from a description of the cuts. Greenstein agreed to use whatever statement was devised in coordination with the governor's office to respond to the LSU cuts.
In a series of emails on July 13 and 14, Plotkin urged Greenstein and his staff to "pen an op-ed from Bruce for all papers on why LSU hospitals need to transform the way they do biz now with this loss of money."
Using his personal Gmail account, Plotkin sent the message to the personal email accounts of five DHH employees saying, "We need to get out front on this message."
In another set of conversations about a requested newspaper correction, Lynch, one of Greenstein's top advisers, told a department spokesman not to use a state government email account.
"Please be careful to send stuff from Kyle like what you just sent .... only to my gmail. May have accidentally hit my state addy (address), but they are very particular," Lynch wrote.
Bunting, of the Missouri-based watchdog group, said government employees who use private email accounts to conduct public business should forward those conversations to public email addresses and direct others to send emails to their public accounts, to help ensure those communications are included in response to public records requests.
When running for office in 2007, Jindal campaigned on improving government transparency in a state known for its backroom political deals, imprisoned elected officials and ongoing investigations into public corruption. Since then, the governor has opposed attempts to open more of his office's records to public scrutiny, and agencies in his executive branch have exerted new claims of privilege to shield documents.