Ever since the story broke in March that Hillary Clinton used a private email account to conduct official business as secretary of state, the controversy has steadfastly stuck to her latest attempt at the White House. The revelation dominated national headlines for weeks and occasioned much hand-wringing among the Washington media. Pollsters even began pegging “Emailgate” to a drop in Clinton’s early popularity numbers.
Meanwhile, one of Clinton’s closest rivals for the Democratic presidential nomination, former Maryland Gov. Martin O’Malley, has so far ducked serious scrutiny over his own handling, and deleting, of official emails conducted on a private Gmail account.
During the height of the Clinton email frenzy, I submitted a records request asking for emails pertaining to a supportive letter Gov. O’Malley sent to the FCC last August regarding Comcast’s now-failed attempt to merge with Time Warner Cable, a proposal that critics argued would give Comcast a dangerous level of monopoly power over the cable and broadband industry, reducing competition and hurting consumers.
My previous reporting has determined that Comcast lobbyists played a heavy role in soliciting, and in some cases ghostwriting, other letters of support sent to the FCC by public officials. I wanted to know if the same was true of O’Malley, who has sought to position himself as a progressive alternative to Clinton.
O’Malley’s letter to the FCC shares similarities to letters known to have been ghostwritten by Comcast; it heaps prominent praise on both the company’s local infrastructure investment and its Internet Essentials program, which provides discounted service to qualifying low-income customers.
In 2007, Comcast contributed $25,000 to O’Malley’s first inaugural gala, and the company and its employees continued to contribute thousands of dollars to his election campaigns.
My requests, filed with three different Maryland state agencies, turned up nothing regarding the drafting of O’Malley’s FCC letter.
Perhaps this should have been expected. In March, during an address at the Brookings Institution, O’Malley described his office’s policy of routinely deleting his gubernatorial emails. “We had a retention policy and, you know, unless there was open litigation or an open FOIA we would generally hold onto those for a certain number of weeks and then delete them or purge them from our system,” O’Malley said. “But we always abided by whatever the state law was on that, and I relied on my legal counsel to do that.”
“It is an open question of public policy all across our country: How long should governments retain? Ninety days? Two days? Three weeks? Who knows?” O’Malley continued. He said it was an “open and interesting question in the age of electronic information sharing.”
But in Maryland little ambiguity surrounds this issue. Maryland public records laws require that official emails remain publicly disclosable not only during an official’s tenure but also afterward for as long as such records exist. A state agency can destroy a public record only after securing a “retention schedule,” which must be approved by the state archivist, and officials who destroy public records without the “proper authority” can face criminal penalties. A review of Maryland’s database of retention schedules turned up nothing relating to O’Malley’s day-to-day gubernatorial emails.
In an email, acting State Archivist Timothy Baker said that O’Malley had properly transferred his existing records to the archive. “The transfers were consistent with the law and with policies and practices in place for over fifty years with regard to disposition of governor’s records,” Baker said. He did not respond directly to questions about O’Malley’s retention schedules.
Although the governor’s office provided the state archive with a digital drive containing messages from O’Malley’s official “.gov” address, that archive was composed overwhelmingly of incoming messages from constituents. O’Malley does not appear to have created any mechanism for public access to any messages that might remain in his Gmail archive. Instead, he relied on an apparently secret legal interpretation according to which the governor’s office does not always count as a state agency under Maryland law and is thus not obligated to comply with certain public records regulations, according to a source in state government who asked not to be identified. The official said that O’Malley was not the first governor in Maryland to make use of this interpretation.
It appears that this legal determination has never been publicly disclosed, explicitly authorized by the courts, or approved by Maryland’s legislature. The existence of the interpretation could potentially permit the governor’s office to destroy public records at its own discretion, significantly weakening the authority of the state’s Public Information Act. It might also help explain how the former governor has largely succeeded in keeping his official emails out of public view.
“Maryland regulations require public officials to retain and protect all records in their custody and have their retention schedules approved before deleting records,” says Christine Walz, an attorney at the Holland & Knight law firm in Washington, DC, whose work focuses in part on access to public information. “The regulation as it is written does not exempt the governor.”
Indeed, both Maryland’s Public Information Act and the state’s accompanying set of regulations that govern the handling of records make no mention of excluding the governor’s office from having to secure the usual authorization to destroy records. The state’s records law does grant “executive privilege” to governors, but only to withhold records from disclosure in some cases, not to destroy records, according to Walz.
In response to questions from The Intercept, the O’Malley campaign referred me to John Griffin, the former governor’s final chief of staff. Griffin made a vague confirmation of the legal interpretation in regard to O’Malley’s Gmail account but did not provide an explanation or any documentation. “The section of state law you cite does not apply to emails from the governor’s Gmail account,” Griffin said. “This conclusion was supported by judicial determination.”
The Intercept was unable to locate any record or explanation of the legal rationale that O’Malley and other governors used to disqualify their office from state records laws. O’Malley has emphasized that he has complied with open records laws, and Griffin pointed to several PDFs containing messages from O’Malley’s Gmail account that were disclosed earlier this year in response to other public records requests, saying that he helped the state’s attorney general review the “remaining emails in the governor’s Gmail account and disclosed those subject to the privileges and exemptions authorized in applicable state statute.”
“To us it is not solely about whether he complied with the law, it’s also about whether he complied with the spirit of the law and the spirit of good government,” said Noel Isama, the director of accountability and transparency at the Maryland branch of Common Cause, an organization that actively opposed the now-terminated proposal to merge Comcast and Time Warner Cable. “And that’s not being achieved by exploiting loopholes in public information law so that you can limit what you should be disclosing.”
Comcast responded to questions about its role in soliciting O’Malley’s FCC letter by saying it reached out to leaders and organizations across the country regarding the merger. “When such leaders wanted to support our transaction in public filings, we provided them with information on the transaction,” a Comcast spokesperson said in an emailed statement. “Any filings were ultimately decided upon by the filers, not Comcast.” When asked who had drafted O’Malley’s letter to the FCC, Griffin said that the governor’s staff had written the letter.
One of my records requests did turn up two emails from O’Malley’s official .gov email account: a constituent’s complaint about the governor’s FCC filing and a form-letter response. “The fact that this letter was prepared and transmitted at all raises serious questions about the Governor’s motivations in sending it,” the constituent wrote, “and the possibility of the improper influence of corporate actors such as Comcast in the Governor’s Office.”
Photo: Democratic presidential candidate, former Maryland Gov. Martin O’Malley, speaks to supporters at his campaign headquarters on May 30, 2015, in Des Moines, Iowa. (Charlie Neibergall/AP)