State agencies in the past have retained their own records of correspondence with staffers at the governor’s office except under special circumstances.
But as Gov. Peter Shumlin prepares to finish his term, nine sources say word came down from the Fifth Floor last summer that correspondence with agencies is redundant and only one copy should be kept — by the governor’s office.
Sources also say agencies have been asked to bundle the documents, and in some cases, contracts, and funnel them through the governor’s office before they are sent to the state archive.
Records kept by the Shumlin administration in the state archive will be held under an exemption from the Vermont Public Records Act known as executive privilege for at least six years. Executive privilege allows the governor to keep his or her communication private. Extending the exemption to communication between the governor’s staff and state agencies is a gray area in the law.
In this scenario, documents that previously would have been held by state agencies and available to the public will not be subject to public records requests. Nor will they be available to the incoming administration of Gov.-elect Phil Scott.
Sources say it’s an unprecedented power grab by an outgoing administration.
Scott Coriell, the governor’s spokesman, flatly denies that any “directive” has been made ordering state agencies to destroy “duplicate” records.
“We are going above and beyond what any administration has done in terms of providing the public with an immense amount of information about the governor’s activities during his tenure,” Coriell said.
The administration is the first to provide electronic emails for archiving. In the past, only printed copies of the emails were kept from Dean and Douglas administrations.
“I think that’s a big step, I think that’s an appropriate step to take,” Coriell added. “I think it will prove valuable to see how their government functions and works.
The Shumlin administration is now in the process of determining which electronic records will be preserved for posterity as part of the archival record of Gov. Peter Shumlin’s six year term in office.
In the past, the governor’s office has negotiated a memorandum of understanding with the Secretary of State’s office over what records can be destroyed or held under executive privilege.
Under the Douglas administration, for example, the former state archivist went back and forth with the governor’s office over what staff emails with agency officials could be held under executive privilege. In general, few emails were kept in the Douglas archive because the staff made a practice of eschewing email correspondence, sources say.
A new provision passed in 2008 gave the governor more authority to determine what falls under executive privilege and weakened Secretary of State’s authority to negotiate. Destruction of records at the agency level is governed by a different provision of the Public Records Act.
While the state archivist and the Shumlin administration have had ongoing discussions about records retention for the archive for more than a year, the governor’s office and the Secretary of State have not yet come to an agreement about what records may be held under executive privilege in the archive and for how long.
Letter from Condos, Hoffer
The allegations that the Shumlin administration has asked for the destruction of emails have been persistent and eventually came to the attention of Secretary of State Jim Condos and State Auditor Doug Hoffer.
Neither Condos or Hoffer would agree to provide comment for this story.
VTDigger placed a public records request for a letter sent by Condos and Hoffer to the governor’s office.
In the letter dated Oct. 17, Condos and Hoffer raised concern over a reported “directive” related to preservation of “duplicate” emails.
“It has come to our attention that the Office of the Governor may be providing direction regarding the management and retention of email messages created or produced by agencies and departments under the supervision by the Governor,” Condos and Hoffer wrote in the one-page letter sent to the governor’s legal counsel, Sarah London.
Condos and Hoffer reported that at least “one agency/department” had contacted the State Auditor’s office, concerned that agency secretaries and department commissioners had been “directed to delete ALL emails” between their “agency/department” and the governor’s office.
Also, the letter stated, the “understanding” from the concerned party was that the governor’s office would “manage and preserve those emails.” Similar information was shared with the Vermont State Archives & Records Administration, Condos and Hoffer wrote. VSARA falls under the oversight of the Secretary of State’s office.
London, the governor’s counsel, provided a three paragraph reply, writing that she had already responded to Condos’ staff three weeks earlier about the issue and questioned why the matter had resurfaced. She referred Condos and Hoffer to the Vermont Attorney General’s Office, which has been directly involved in advising the governor’s office regarding public records retention.
“Your staff acknowledged the clarification that day,” London wrote, adding the governor’s office has “heard nothing from your office” since that time.
“We look forward to discussing your willingness to appropriately manage the duplicate records of the Governor’s Office consistent with the attached MOU,” she wrote.
A call this week to London was returned by Coriell, the governor’s spokesman.
“There was no directive from the governor’s office telling people to delete emails,” Coriell said, adding that there may be confusion because this is the first time a governor is sending electronic emails to the Secretary of State’s office for archiving.
Several sources said that in addition to deletion there had been requests to agency officials to bundle correspondence with Shumlin’s staff and certain contracts for the governor’s office for archiving.
Coriell denied that any such request had been made.
Agencies have been asked, he said, to label policy formulation documents with the governor, or his senior staff, “executive privilege.” That’s so the Secretary of State’s office can determine “how and when they should be released consistent with our document retention schedule,” Coriell said.
The governor’s office is not redacting anything, he said aside from some information in its constituent service database such as personal email addresses and Social Security numbers.
An unsigned draft MOU between the Shumlin administration and the Secretary of State lays out the process for the release of archival records subject to the claim of executive privilege prior to the end of the six-year period.
The documents could only be released by a court order; with written approval by Shumlin; to the staff of the state archives “in so far as necessary to assure archival security”; or, if the record had intentionally been placed in the “public domain” by either the governor or attorney general.
Executive privilege was first invoked by the administration of former Gov. Madeleine Kunin in the case, Killington v. Lash, according to a footnote of the draft MOU.
In that decision the Vermont Supreme Court ruled that a governor may claim an exemption to the public records act by asserting executive privilege to preserve “the confidentiality of intergovernmental documents reflecting advisory opinions, recommendations and deliberations comprising parts of the process by which governmental decisions and policies are formulated.”
In a separate footnote, in the 2005 case, Judicial Watch v. State, the Vermont Supreme Court “affirmed the longstanding practice of accepting a retiring governor’s official papers with restrictions on public access to designated portions of the official correspondence for a period of years.”
And, the footnote adds, recent previous Vermont governors and secretaries of state have agreed to periods ranging from six to 10 years, and in the most recent instance, Gov. James Douglas and the secretary of state office agreed to a six-year period. That’s the same period contemplated in the draft memorandum by the Shumlin administration.
Jason Gibbs, spokesman for the Gov.-elect Scott’s transition team, said he didn’t know enough about the records retention policy of the current administration, or past administrations, to comment.
“The last time I worked in state government the legal counsel in the governor’s office handled all of the decisions around what was archived, and by whom,” said Gibbs, who served as spokesman and adviser to Gov. James Douglas.
He did say he would expect that public policy deliberations at the agency and department level to continue to be public record, available to the public and the incoming administration.
“But that’s not to say what they’re doing would restrict that,” he said. “I don’t want to be critical of them without knowing the details.”
CORRECTION: An earlier version of this story incorrectly described a change in the public records law governing executive privilege and destruction. The date of the change was also incorrect.
