Three months ago, the Anchorage Daily News asked the Alaska Department of Law for copies of text messages that then-Attorney General Kevin Clarkson exchanged with another state employee.
The public information request was passed directly to Clarkson, who was asked whether he had any relevant public records on his personal or state-issued phones. He said he did not, and the request was closed two weeks later with a terse response to the newspaper: “The Department has no records.”
The Department of Law, which Clarkson led, never had access to the messages, said spokeswoman Cori Mills.
Two months after that, the Daily News published a bombshell story based on Clarkson’s text messages that it obtained from another source. It said the married attorney general had exchanged more than 500 texts with the woman, who is a lower-level employee who can be fired by the governor.
LISTEN: How months of reporting on attorney general’s unwanted texts led to his resignation
Many of Clarkson’s messages included kissing emojis, and he asked her to come to his house at least 18 times, the newspaper reported.
While the woman has not said whether the texts were unwanted, one workplace expert told the newspaper that the exchanges “definitely crossed professional and ethical boundaries.”
Clarkson resigned the day the story was published. But the Department of Law’s response to the newspaper has prompted two lingering questions: Did it fail to turn over records that the Anchorage Daily News was legally entitled to receive? And was Clarkson the right person to decide which records to release?
Access to state records is guaranteed by state law, and news organizations and members of the public rely on them to shed light on the internal workings of government and hold public officials accountable. But some say the denial of the newspaper’s request shows that the state’s system for providing that access is broken, because it depends on public officials’ willingness to turn over documents that could incriminate them.
“It is important for that step to be transparent, and that your public records law doesn’t have a glaring loophole where public officials can just conduct a bunch of business on their personal device,” said Anchorage Rep. Zack Fields, a Democrat who’s criticized Clarkson’s conduct and the response by Gov. Mike Dunleavy.
Public messages, or personal ones?
There are two key questions about the handling of the newspaper’s request for Clarkson’s messages. First: Did the messages qualify as public records that should have been turned over by the Department of Law?
The texts were sent from the attorney general’s personal phone, according to the conservative news site Must Read Alaska.
But that doesn’t exempt them from disclosure: A 2012 decision by the Alaska Supreme Court declared that communications on private accounts should be treated no differently than those on state accounts.
Whether a record is public depends on a simple two-part test, said Mills, the Department of Law spokeswoman: Was it developed by a state employee, and does it relate to state business?
In Clarkson’s case, there’s not a consensus as to whether any of his texts with the woman were connected to state business.
Of the more than 500 messages obtained by the newspaper, only a small selection were published, and many are personal invitations from Clarkson to the other state employee.
But in one of the exchanges, Clarkson also invokes his title, telling the woman that she can justify joining him at an unnamed location by saying that “the AG told me to.”
“No way! I love my job!” the woman said. Clarkson responded: “You can come work at Law.” In another message, Clarkson told the woman that “I was talking to the governor. I’m on duty 24/7.”
One attorney with experience in public records law said he doesn’t think the state was obligated to turn over the published messages.
“They happened to leak, and when they leaked, they were of political interest,” said Don Mitchell, who represented a citizen activist in the 2012 Supreme Court case. He added: “They did not implicate the public records law in any way.”
David Hulen, the Daily News’ editor, declined to be interviewed. But he said in a brief email that the newspaper considers some of the unpublished messages to be “responsive,” meaning that they related to public business.
“There were texts between the AG and the state employee that we believe should have been considered ‘responsive’ records, because they dealt with work matters, and should have been provided as part of the public-records request,” Hulen said.
The Department of Law has not said whether, in retrospect, any of the messages should have been released.
“We haven’t done a specific analysis as we do not have those text messages, other than what has been published in the news,” wrote Mills, the spokeswoman. “If we received a request, we would evaluate it in compliance with our normal process and the information that is available at the time the request is received.”
Who decides what’s public, and what’s not?
The department’s lack of access to the text messages raises the second question about its denial of the newspaper’s request: Was it appropriate to allow Clarkson to decide for himself whether to release any of the text messages?
Mills said the Department of Law followed the same process with the newspaper’s request for Clarkson’s messages that it does with any other agency employee.
“He was forwarded the request, the definition of a ‘public record’ was explained to him and he was asked whether he had any responsive public records on state-owned or personal devices,” Mills said. “He responded that he did not.”
Clarkson did not respond to requests for comment.
When it comes to state-owned devices or accounts, Mitchell, the attorney, said public officials should not have the authority to decide which of their messages should be disclosed in response to a public records request.
He said the Palin administration used a similar system, where officials were tasked with archiving their own correspondence.
“You could sit there on a Friday afternoon with a cup of coffee and every single email that, in retrospect, might have been a little politically embarrassing with respect to your state business, you just hit the delete key. And there’s no third-party supervision of that,” Mitchell said. “I thought that was inappropriate then, and I think it was inappropriate now.”
But things get more complicated when it comes to the state accessing messages on public employees’ personal devices, Mitchell said.
“What if I’m having an affair with the wife of an old friend of mine from college? I don’t want the state to know that. It’s none of the state’s business,” he said. “This gets pretty dicey when you get off of the state systems of communication.”
Mills, with the Department of Law, said the state would act carefully if an agency suspects there are public records on a personal device and an employee does not provide them voluntarily.
“There are both statutory and constitutional issues that would need to be addressed, and whether the state as an employer can lawfully demand access to a personal device would be a very fact-dependent analysis,” she said. “To put it more simply, this type of action would basically amount to confiscating someone’s personal belongings, which cannot and should not be done lightly.”
Fields, the Anchorage representative, said he thinks that third-party state employees could review public records on private devices or accounts the same way that they should with state-owned ones.
“They’re professionals, and they apply the statutes,” he said.
He said the handling of the request for Clarkson’s messages demonstrates a need for an inquiry during the next session of the Alaska Legislature, “with the first question being: Did the administration even follow the law?”
“And then the second question being: Does the law need to be clarified?” he said.