WASHINGTON -- Republican presidential candidate Mitt Romney and some of his top aides used private email accounts to conduct state business at times when Romney was governor of Massachusetts, according to documents obtained by The Associated Press.
The communications were legal, even though Romney's own administration warned state agencies against the practice due to cyber security concerns. The state archives in Massachusetts -- which learned about Romney's emails from the AP -- now says the private emails should have invoked rules about preserving copies of state records.
Private email accounts used by public officials to perform their public jobs are effectively off limits to review by citizens, watchdog groups, political opponents and news organizations because they're often used secretly. Free accounts from commercial providers also are more vulnerable to hackers who exploit easy-to-use features to reset email passwords.
The issue surfaced in Alaska when critics of former Gov. Sarah Palin learned she and others in her administration were using private accounts to avoid the state's email system. Ethics campaigner Andree McLeod, among many activists and news organizations to seek Palin's email record, has urged the Alaska Legislature to ban the practice, to little effect so far.
Romney's use of a free Microsoft Hotmail account and a private email address linked to his 2008 presidential campaign was revealed in documents the AP obtained under the Massachusetts Public Records Law. The Romney files, which span four months in mid-2006, represent the first substantive emails written by him to surface since he left public office in 2007. When the AP examined dozens of boxes of archived materials last summer in Boston from Romney's former administration, it found no emails or memos written by or to Romney himself.
Some of the emails obtained by AP describe Romney's internal deliberations on his health care policy and the state's 2006 budget crisis: "I hate appearing as if I am just playing national politics," Romney wrote in November 2006 during sensitive negotiations on state budget cuts, when he was preparing his 2008 presidential campaign. Romney chose to use his full name as his Hotmail username.
The private email accounts raise questions about why Romney and his aides sometimes bypassed Massachusetts' official communications system -- and how many of those emails remain and whether they could be disclosed to the public. Late last year, Romney acknowledged that near the end of his governor's term in 2007 he approved a sweeping purge of executive emails from the state government's computer servers, and the removal of top aides' hard drives and computers. Romney justified the purge as legal, prompted by privacy worries.
Romney's presidential campaign declined to explain why Romney and his aides used the private accounts or explain how long and how extensively they used them.
"Gov. Romney and his staff complied with the law and followed precedent in the handling of documents in the executive office," campaign spokeswoman Andrea Saul said.
Using private email accounts to conduct government business has embroiled leading politicians, including Karl Rove and Palin, and has become a growing legal flashpoint nationwide. While 26 states view the use of private emails for government business as public records, the rest have no clear rules or prevailing case law -- a source for continuing turmoil in state courts.
"Any time public business is being done electronically, whether it's public or private email, the public should have a record," said Lucy Dalglish, executive director of the Reporters Committee for the Freedom of the Press, which tracks how states deal with electronic data and other records. "When you use private devices to do public business you remove public accountability."
Last year, Palin -- the 2008 Republican vice presidential candidate -- was forced to release more than 24,000 pages of emails from her official and private Yahoo email accounts, including more than 400 emails from her Yahoo account.
Separately, a college student in Tennessee, David Kernell, was convicted in April 2010 on federal charges of hacking into Palin's private emails weeks before the 2008 presidential election. Palin and her daughter Bristol testified about harassment and disruption they suffered. Kernell had correctly guessed answers to security questions guarding Palin's account, giving him access.
In recent months, governors in Florida and South Carolina have fought to block disclosure of state communications on their private email accounts. In 2011, news organizations pursued a lawsuit to see the emails of former North Carolina Gov. Mike Easley, a Democrat, who used a private email account for state business. The Colorado Supreme Court ruled last year that Democratic Gov. Bill Ritter was not required to disclose his private cellphone records even though the calls were mostly for state business.
In Washington, even though the Presidential Records Act requires White House documents to be preserved, a congressional investigation disclosed in 2007 that millions of Bush administration emails on a private server could not be accounted for -- including emails from former Deputy Chief of Staff Karl Rove. President Barack Obama negotiated a compromise at the start of his term allowing him to use a private BlackBerry for personal and official business -- provided that some messages would go to the National Archives at the end of his term.
Romney campaign officials said that Massachusetts governor's records are not subject to the state's public records law and that their preservation is voluntary. Mark Nielsen, Romney's former chief legal counsel and now a presidential campaign fundraiser, said that a 1997 Massachusetts high court ruling exempts the governor's office from any public records requirements. He said prior governor's administrations were not required to preserve emails.
"I don't think there has ever been an expectation that all electronic records or emails would be preserved," said Nielsen, who corresponded with Romney using private emails.
But Brian McNiff, a spokesman for the Massachusetts Secretary of the Commonwealth, which oversees handling of government records, said his office considers private emails used for state business to be government records and subject to preservation rules. "This office would contend they are public records and that retention rules apply," McNifff said.
Laurie Flynn, the department's chief legal counsel said last year that the governor's electronic files were subject to preservation rules. "There may be exemptions from producing them but they are still public records," she said, adding: "Even if they don't transfer records to the archives, they remain records of the office."
State rules in effect in 2006 required that internal, executive, "decision-making" correspondence had to be reviewed by state archives officials before destruction. A separate 2006 rule required executive emails to be preserved permanently. Current rules allow that correspondence about internal decisions and policies can be discarded after five years but only with permission from the state's records conservation board. New guidelines also warn that destruction of electronic records can proceed only in accordance with applicable laws and the board's approval.
When Romney stepped down as governor in early 2007, his administration turned over more than 630 boxes of documents to the state archives -- a move that Romney campaign officials said exceeded previous administrations. But several former aides said those files included only limited materials from Romney's executive office. After the AP examined boxes of state archives last summer, it requested Romney-era email files from nearly two dozen Massachusetts agencies. The state turned over nearly 400 emails this week that included 10 emails written to or from Romney.
The newly released emails do not indicate how regularly Romney used private accounts for state business, but he used them during the work week and after hours and weekends. The emails also show that Romney used his official state email account at times, mostly for routine messages or mass mailings.
Massachusetts does not forbid conducting state business over private email accounts, but Romney's own administration warned one month after his inauguration in 2003 that using such accounts can be vulnerable to hacker break-ins and computer viruses.
The former chief information officer under Romney, Peter Quinn, said there were no known virus outbreaks linked to Romney or his staff but several viruses were traced to the state Legislature.
Romney used both a Hotmail account and a political email account linked to his romney.com presidential campaign website for at least four months in 2006, his last year as governor. He also corresponded through a BlackBerry linked to his Hotmail account, the records show. In August 2006, Romney told a group of recipients who included at least one state official that all future emails were to be directed to the campaign account.
Romney wrote that, effective immediately, the new account would be his new email address. "Please keep it confidential as its use is for family and close friends," Romney wrote. "I will no longer be using my Hotmail account."
One month later, Romney again used the Hotmail address to revise an opinion piece he was writing. "Hi team," he wrote to then-press aide Eric Fehrnstrom, now a campaign strategist, along with several other top staffers. "Here's another crack at the op ed. Thanks to Eric for the draft from which I stole much. And apologies to Eric for rewriting so much. You know how I am. Best, Mitt."
The emails show that Fehrnstrom also communicated on state business at times from a private email account. So did former Romney chief of staff Beth Myers, now a senior campaign aide, as well as former aide Cindy Gillespie, now a Romney campaign fundraiser.
Many of the newly-released emails were written to and from Thomas Trimarco, a former state administration and finance chief whose electronic files were among the few accounts not deleted during the records purge under Romney. Alex Zaroulis, a spokeswoman for the state administration and finance office, said her department has so far identified 3,500 Trimarco emails and was searching for more.
Trimarco told the AP that he left his email and other electronic documents in his state computer because, "I considered them state records and they belonged to the state." He said he was not told about the erasure of files authorized by Romney "probably because I wasn't part of his inner circle. He was my boss, but I wasn't part of his executive staff."
The AP sent emails to each of Romney's private accounts and those of his former aides. Both Romney's accounts appeared to be operative, but he did not reply. A Microsoft spokeswoman said Hotmail accounts are closed after 270 days of inactivity and incoming emails sent afterward are rejected as undeliverable. Neither of Romney's accounts bounced messages back to the AP.
Messages to Nielsen and Gillespie bounced, and there were no replies from Fehrnstrom and Myers. Trimarco acknowledged he occasionally used a now-defunct private account for state business but stuck to his official computer "almost exclusively."
In one instance, an email sent to Romney's official governor's email account was returned from his private address. In August 2006, Trimarco told Romney that he and other state officials had pressed members of an influential health care "Connector" board to approve higher rates for poor patients but ended up compromising on lower rates. The next morning, Romney replied from his campaign account, praising Trimarco for cutting the deal.
"Tom, congrats on moving the ball forward," Romney wrote.
A heightening battle with the Massachusetts Legislature over the state budget was a consuming issue. After the Democratic-dominated legislature used a state "rainy day" surplus account for $425 million in spending, Romney told Fehrnstrom in a June email from his Hotmail account that "I'd like to get the message out that what they are doing is a huge departure from fiscal discipline and that if we go down that road, big problems -- like deep cuts to local aid, education and higher taxes -- are sure to follow."
Romney vetoed the surplus spending that month, but the Legislature overrode his veto.
By November, intent on finding an offsetting $425 million in appropriations cuts, Romney wrote Fehrnstrom from his campaign email account that he was considering negotiations but inclined toward a budget battle that would "let the fur fly." Romney wrote that "this is about getting spending under control for the state and a new administration."
Romney ordered $425 million in cuts that month, slashing medical, social service, education and public works programs. But he backtracked on some reductions because of public concerns.
Deval Patrick, the incoming governor, restored most of the cuts.
By STEPHEN BRAUN
Associated Press