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Candidates shield records

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STEPHEN BRAUN
November 30, 2011
— In the final weeks of Mitt Romney's term as Massachusetts governor, a small team of aides combed through statehouse filing cabinets. They filled more than 630 cartons with papers destined for the state archives as the primary documentary legacy of his administration. One floor, though, was almost completely off limits to them: Romney's inner sanctum, his third-floor office.

The former legislative affairs director who headed the archiving effort, John O'Keefe, recalls that his team was given a stack of Romney's public schedules over four years and a limited variety of other documents from the governor's executive office, but not much else. "We were told we were not in charge of archiving the third floor," he says.


The mystery deepened recently when the chief legal counsel for Romney's Democratic successor, Gov. Deval Patrick, said that just before Patrick took office, material on a state government web server that housed Romney's emails was erased. Top Romney aides also bought and removed their state-issued computer hard drives, and remaining leased computers were replaced. Romney said he followed the law in authorizing the purge, and his campaign aides said their actions were based on a 1997 Massachusetts court ruling that all governors' records are private.


Romney's selective policy toward public access and preservation of his executive records raises stark questions about how transparent his administration would be if he were to become president. He's not alone. Other leading candidates for the presidency — incumbent Barack Obama and Texas Gov. Rick Perry — have touted their commitment to transparency, but their administrations also have been selective at times in the records they disclose. They have limited, stalled or denied access when it suited their purposes.


"What I wish Americans could expect is a politician who talked a good game and walked a good game, too," said Ken Bunting, executive director of the nonpartisan National Freedom of Information Coalition. "The reality is everybody gives lip service to transparency and accountability."


Romney's submission of paper documents to the Massachusetts archives was made "in the interest of transparency and to help provide a record of his time in office," said Eric Fehrnstrom, a senior campaign adviser. But the holdings in the archives are far from comprehensive. An Associated Press reporter sent from Washington earlier this fall spent a week examining the Romney archives, but did not find paper copies of any emails to or from Romney or any internal calendars or in-house memos — all commonly used by governors. There are no state archives records accounting for what happened to those materials.


The growing use by government agencies and political campaigns of new channels of electronic communication, including text messages, online videos and social media services, has opened new dimensions in the availability of public records. But presidential candidates haven't been especially transparent.


"There's the potential for a lot more raw information than in the past as emails and other electronic communications replace phone and face-to-face conversations," said Peter Scheer, executive director of the First Amendment Coalition, a nonprofit public interest group. "The problem is we're seeing officials and governments moving more and more to shield those materials from public access."


Only about one-quarter of the 630 cartons of Romney paper records are available for inspection at the Massachusetts archives. State legal officials have yet to say whether the 1997 court ruling allows access to the other material. Even if they do, Assistant State Archivist Michael Comeau said, staff shortages and time-consuming redaction checks could extend delays close to the 2012 election. More than 75 cartons examined by the AP revealed staff and legislative documents but no internal materials written to or from Romney himself — except for ceremonial bill-signing and official letters.


As governor, Romney's careful line on providing records was based on a 1997 Massachusetts Supreme Judicial Court ruling that "the governor is not explicitly included" among other state officials and agencies covered by the state's Public Records Law, which generally requires agencies to submit to records requests. Other governors since 1997 have interpreted the ruling similarly.


The AP submitted detailed questions to Romney about how his administration handled public records when he was governor, but the campaign responded with only a brief statement: "The governor's office in Massachusetts is not subject to the state's public records law. As a legal matter, it is not required to disclose any documents." Fehrnstrom, who was Romney's chief spokesman during that era, said the Romney campaign does not possess any remaining gubernatorial records outside of the Massachusetts archives.


After The Boston Globe first reported that his aides had purged electronic files, Romney said the deleted materials might have contained confidential medical, judicial or personnel records. Still, when Romney's archive team found confidential files at the end of his administration, they separated those materials from thousands of other documents that were turned over to the archives. O'Keefe, now city manager in Manchester, Vt., recalled that anything that appeared "confidential in nature" was turned over to a private vendor for shredding.


Suggesting that Romney's Massachusetts administration "deliberately sought to delete public records" in advance of his 2007 presidential run, the Democratic National Committee has pressed three separate Massachusetts public records requests for more background on the purge. Romney's campaign has responded with its own request to Patrick's office asking for any evidence of collaboration between his staff and Obama re-election officials.


Gavi Wolfe, a legal counsel for the Boston office of the American Civil Liberties Union, said Romney's authorization of the purging of third-floor electronic files set an "alarming" precedent: "I would be concerned about the chief executive wanting to shield the actions of his administration from public scrutiny." Romney said during a New Hampshire campaign stop that if elected, his presidential administration "would do what's required by the law and then some."


In three years in the White House, Obama set an even more ambitious standard, committing publicly to improving transparency and setting clear goals for federal agencies to respond more quickly and expansively to public records requests.


Obama signed an executive order on his first day in office in 2009, directing federal officials to make good on his detailed commitment to broaden accountability. His directive led to the opening of White House visitor logs and plans to improve responses to records requests, whistleblower protections and declassification of outdated secret documents.


But many of Obama's broad commitments have not been met. In the face of criticism, the Justice Department abandoned a proposal that would have allowed officials to pretend that some government files didn't exist when people asked to see them. And the government completely turned down records in one-third of all requests in 2010 — even censoring 194 pages of internal emails about Obama's Open Government directive.


The White House and Energy Department have been hesitant and selective turning over records related to the GOP-led congressional investigation of Solyndra, the failed California solar panel company. The AP pressed three separate appeals for records in September, but Energy Department officials said they would take months because of the number of documents and requests to read them. In early October, as Congress threatened to issue subpoenas, White House officials quickly provided reporters with thousands of pages and DVDs filled with hundreds of emails.


White House officials would not comment on the sudden shift, but campaign spokesman Ben LaBolt said, "The president and this administration are changing the ways Washington works in terms of transparency."


In Texas, Perry has made similar claims, pointing to broad swaths of electronic data that his administration has made available online — from state agency expenditures to death certificates. But Perry's administration has also blocked viewing of expenditures for his security guards when he travels, even though much of that travel has been subsidized by campaign funds or by private business executives. He also barred access to his reviews of death penalty cases and to his private calendars, even though his predecessor, former President George W. Bush, had made both available when he was governor.


"The people of America aren't seeing the real Rick Perry," said Keith Elkins, executive director of the Freedom of Information Foundation of Texas. "They may get a glimpse of him on the campaign trail, but the real record has been hidden and carefully parceled out."


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Associated Press writers Brett J. Blackledge, Matthew Daly and Jack Gillum contributed to this report.



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