What If Hillary Had Just Used the Phone?

In 2006 when Sarah Palin was elected governor of Alaska she was given a state email account. But rather than using it exclusively as she was instructed to do, Sarah created gov.sarah@yahoo.com, a private account that she directed members of her senior staff and her cabinet to use when they needed to email the governor.

In 2008 Andree McLeod, a local community activist, discovered that the governor was using gov.sarah@yahoo.com to conduct state business. Representing Ms. McLeod, I sued Sarah to establish the legal principle that emails sent or received by a state official on the official's private email account and whose content involves state business are "public records" within the meaning of that term in the Alaska Public Records Act.

In 2012 the Alaska Supreme Court agreed with Andree McLeod and me that those emails are "public records."

By the time the Court did so Sarah was long gone, having resigned as governor three years earlier to make her fortune as a political commentator for Fox News and right-of-Republican Tea Party maven. But before the McLeod v. Palin lawsuit reached the Alaska Supreme Court, in 2009 when Lieutenant Governor Sean Parnell succeeded Sarah, one of his first acts as governor was to prohibit state employees from using their private email accounts to conduct state business.

At the time, I was quite pleased with how my lawsuit had worked out. But the ongoing dust-up over former Secretary of State Hillary Clinton's use of a private computer server to conduct State Department business has caused me to reconsider the underlying policy objective.

Secretary Clinton's cover story is that she set up her private email communication system for reasons of personal convenience. But it is reasonable to assume that she actually set it up for the same reason Sarah created gov.sarah@yahoo.com, which was to keep her email communications private and, in Clinton's case, to prevent them from being available for public inspection pursuant to the Freedom of Information Act.

Whatever her motivation, Secretary Clinton now says she should not have done what she did. But setting aside the issue of how she handled (or mishandled) classified information, is it really in the nation's interest to subject the email messages of federal employees, from the secretary of state on down, to public disclosure?

I pose the question because email has become the Internet equivalent of the telephone call. Presidents John Kennedy and Lyndon Johnson installed taping systems in the Oval Office that allowed them to record their telephone calls. But they had no legal obligation to do so. And no one - including Representative Jason Chaffetz, the Republican chairman of the House Committee on Oversight and Government Reform who is trying to use the manner Secretary Clinton handled classified material on her private computer server to damage her presidential campaign - has ever suggested that federal employees should be required to record their telephone calls. Because no one has, the 1.4 million civilian employees of the federal government routinely conduct government business on the telephone. And unless someone participating in a call decides to take notes, when the call is over there is no record of what was said.

Why should email messages those same employees send and receive whose content involves that same government business be treated differently? Maybe there is a policy rationale for treating them differently. And maybe there is not. But the subject merits public discussion and debate.

Transparency in government is an important societal value. But the federal government could not operate if every federal employee knows that every word he or she utters on the telephone during the workday is subject to public disclosure. Nor could the rest of us live our lives that way.

Where the line between the need for government transparency and the equally important need for government confidentiality should be drawn when a federal employee sends or receives an email message instead of making or receiving a telephone call is a matter about which reasonable people can have differing views.

The mess Hillary has made of her attempt to draw that line on her own presents a fortuitous occasion for the members of the congressional committees that have oversight jurisdiction over the Freedom of Information Act to hold hearings to obtain testimony from witnesses who know way more about the subject than I do where, if anywhere, they think the line best should be drawn. And there would be no better expert witness to kick those hearings off than Alaska's most famous former governor.