Just weeks after federal authorities arrested the former speaker of the New York State Assembly on corruption charges, Gov. Andrew Cuomo quietly informed lawmakers there of his plan to purge all state employee emails that are 90 days or older.
The New York action is prompting concerns that similar policies might be sought at the federal level.
Tom Fitton, president of Judicial Watch, a Right-leaning nonprofit advocate for transparency in government, said bipartisan concerns have arisen in the wake of the move, which he said will undoubtedly scrub emails that would be useful in current and future probes of official corruption.
“Coming on the heels of the arrest of Assembly Speaker Sheldon Silver suggests this is part of a cover-up operation,” Fitton told the Washington Examiner. “Given this memo and that arrest, I think it’s fair to ask if there’s a connection.”
Silver was accused by federal authorities of accepting bribes and kickbacks during his time in office, as well as engaging in a scheme to buy plaintiffs for a series of asbestos lawsuits brought by a law firm that both employed him and funneled $3 million in referral fees to him.
Margaret Miller, the state’s chief information officer, defended the policy of deleting all government emails after 90 days against a wave of attacks by members of both the New York Assembly and State Senate during a joint budget hearing Feb. 26.
Miller told state lawmakers the policy was implemented in 2013 but is now being applied to new technology systems.
She repeatedly compared the time limit to how long people once kept paper letters in their mailboxes, calling the automatic deletions a matter of “encouraging good behavior.”
“I’m old enough to remember when your inbox was actually for papers on your desk. I think we’d all agree that if a matter languished in your paper inbox for three months without responding to it, that wouldn’t be appropriate,” she told state legislators during the hearing. “The same is true in the digital era. We want to encourage staff to be responsive to their colleagues and to citizens.”
Miller said emails subject to state Freedom of Information Law requests or litigation would be retained until those matters were resolved.
But Daniel O’Donnell, a Democratic state assemblyman, noted the policy doesn’t account for Freedom of Information Law requests or lawsuits filed more than three months after the related emails were sent.
“Sometimes, things don’t become relevant or important until after that 90 day period,” O’Donnell said during the hearing.
Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee, told the Examiner the policy would create problems if it was implemented at the federal level.
“I would absolutely not advocate for the federal government to adopt this policy,” Chaffetz said.
While the Utah Republican noted New York’s right to operate without federal interference “even if we don’t necessarily agree,” he pointed to the oversight committee’s protracted probe of the IRS’s illegal targeting and harassment of conservative and Tea Party nonprofit applicants during the 2010 and 2012 campaign.
The IRS scandal provides evidence that emails can indeed be a valuable resource much longer than 90 days after the date on which they were written, he said.
“There have been numerous instances in recent history when email correspondence has been a necessary component of Congress’ ability to identify where problems exist and, subsequently, where reforms are needed,” Chaffetz said. “We need to look no further than the IRS email investigation as an example.”
Hundreds of disaster recovery tapes may have been concealed from the IRS watchdog, preventing investigators from accessing thousands of emails to and from former senior agency executive Lois Lerner, who was at the center of the illegal targeting and harassment.
Timothy Camus, deputy inspector general of investigations, said during a Feb. 26 Oversight and Government Reform hearing that his office is investigating both the missing emails and the circumstances surrounding the hard-drive crash that supposedly erased them last summer.
Camus said the inspector general had discovered 424 additional disaster recovery tapes just two weeks ago. Previously, only 744 tapes were available.
“We realized we were missing a document,” Camus said. “When we obtained that document, we realized that there were an additional population of tapes that had been unaccounted for.”
The deputy inspector general stopped short of characterizing the omission as willful withholding by the IRS when pressed by Rep. Jim Jordan, R-Ohio.
But Camus admitted there is “potential criminal activity” within the emails his office has managed to pull off the tapes so far.
The oversight committee subpoenaed the IRS in August 2013 for Lerner’s email records. After lawmakers asked the Treasury Inspector General for Tax Administration to step in,investigators discovered 80,000 emails on the same computer systems the IRS insisted had been wiped clean or lost in a series of suspicious hard-drive crashes affecting the official computers used by Lerner and other IRS officials involved in the scandal.
In June of last year, the IRS informed Congress the emails had been lost and were unrecoverable.
Patrice McDermott, executive director of the transparency advocacy group Open the Government, blasted New York’s email retention policy as one that would impede transparency.
“This is a terrible policy — and in contradiction to guidance from the New York State Archives and archival best practices,” she said. “It is also a foolish policy, raising as it does questions of obstruction of investigations and accountability to the public.”
Fitton noted the short retention period will place Cuomo on “legally shaky ground.”
Cuomo’s office did not respond to a request for comment Monday.
