On the destruction of government hard drives -- Updated

AG Dustin McDaniel opined Wednesday that former Gov. Mike Huckabee's administration did nothing illegal when it destroyed government hard drives before he left office in January. This prompted a couple of events on Wednesday: first, Mike Huckabee issued the following statement:

"Attorney General McDaniel has done something that should have been done by others who tried to create a controversy when there wasn't one - he conducted a fair and objective review and discovered that we acted not only under the direction of state officials, but in the best interest of the people of Arkansas in our handling of the hard drives" [Ark. News Bureau]

Second, Governor Beebe said Wednesday he would like to clarify the state's policy on the destruction of government hard drives but didn't offer specifics. [Associated Press].

This gets into an interesting area of sunshine in government. My take on FOIA generally is that anything saved onto a government computer is no longer private. Of course, common sense has to be applied for statutory exceptions: unpublished drafts of judicial opinions, SSNs, etc (see a complete list of Arkansas FOIA exceptions here). Public employees should should not have an expectation of privacy on e-mail (and other documents) commingled on a computer paid for by taxpayers, even though the lines are blurring on that issue. For example, employees can access private, offsite computers via an internet connection from a private laptop at the Capitol. Should the data that flows through the state-paid internet connection be subject to FOIA? If the intepretation of the law is to err in favor of disclosure, I'd think so, if no other exceptions apply. Good reporters will also point out that technically, the laptops are plugged into state-paid electrical outlets on state time and that the entire purpose for freedom of information is to shine a light on public activities.

Here, though, the question focuses on whether an obligation should exist to preserve records after someone leaves office, which would allow requests for examination to be made after the changing of the guard. Huckabee and McDaniel are both correct that there is no such requirement currently. I'm not singling out employees in the former administration and don't mean to imply that FOIA requests were avoided in that example as was the case in the more recent event involving the Pulaski County comptroller's office. Huckabee's office directed for the hard drives to be destroyed to prevent access to medical records and Social Security numbers, and some information was backed up on tapes prior to the destruction. I think technology is improving to the point to allow privileged information to be digitally segregated from data subject to FOIA, making it fairly easy for the state to clarify the procedure on the deletion of stored information.

The Arkansas Supreme Court has held that it will liberally construe FOIA to accomplish its broad purpose that public business be performed in an open and public manner and that less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. People have an inherent right to know what their government is up to -- personal documents saved onto a public computer included (like my dad has always said, "don't do anything you don't want on the front page of the Texarkana Gazette"). I'd support legislation consistent with that old adage, even if it is restricted to preserving data stored on public computers for a reasonable time for examination requests or to challenge the denial of a request to produce. It appears that that may not be necessary in that a directive to all of state government in some form is being considered.

Update (Friday): Looks like the Arkansas Supreme Court disagrees with the fourth paragraph above. The Court held today that not all e-mails on a publicly financed e-mail system are open to public inspection. The Arkansas Times Blog has coverage of the opinion.