By Joe Guillen
City of Detroit officials, including Mayor Mike Duggan, sometimes use private e-mail accounts to conduct the public's business -- a practice that concerns open records experts and one that has hounded Hillary Rodham Clinton's presidential campaign.
Duggan explained his tolerance for city employees using private e-mail accounts for official business after the Free Press obtained records through the Freedom of Information Act showing Melvin Butch Hollowell, the city's top lawyer, using both his Gmail account and city-issued e-mail account to communicate with a Detroit International Bridge Co. executive during negotiations for the pending Riverside Park land swap.
The city's e-mail policy prohibits workers from sending, receiving or forwarding "confidential or sensitive City of Detroit data and information through non-city of Detroit e-mail accounts." The policy, dated March 2013, specifically lists Gmail as an example of a non-city account.
Related: State Dept. releases hundreds of Clinton Benghazi e-mails But Hollowell said the Gmail messages, including one that contained a draft of a contract with the bridge company, did not violate the city's policy because they were not sensitive or confidential.
Duggan agreed that Hollowell's Gmail messages were acceptable. (The Free Press requested interviews with Duggan, Hollowell and Chief Information Officer Beth Niblock to discuss the city's e-mail policy. The mayor's office asked for all questions in writing and provided written answers from the three officials.)
"If a city employee is authorized to communicate on a subject, and that communication does not involve sensitive or confidential data or information, that employee is encouraged to use all of his/her social media apps, lists and contacts, both personal and city, to engage the public," Duggan wrote, adding that he, too, uses personal e-mail when it is convenient and appropriate.
"I use the city e-mail system any time I transmit sensitive or confidential city data or information," Duggan wrote. "When I am not transmitting such data, I use whichever form of electronic communication is most convenient or effective in that instance, including personal e-mail. I comply at all times with state law and city policy."
Niblock also acknowledged she has uses a private account for official business.
Related: Why we should trust Duggan's land swap with Moroun Open records experts said the practice is perilous, potentially making it more difficult for the city to access public records stored on employees' personal e-mail accounts and easier for public officials to delete e-mails that are subject to the state's Freedom of Information Act.
"I think it's very troubling for public employees to use private e-mail accounts to conduct public business," said Michael Reitz, executive vice president of the Mackinac Center for Public Policy and board member of the Michigan Coalition for Open Government. "It sends a signal to the public that business is being conducted outside the scope of the public records law."
Duggan, who took office in 2014, pledged earlier this year to make city government more transparent. As part of that effort, the city created a website where more city data and documents are posted.
Gov. Rick Snyder's office does not use private e-mail accounts for official business, spokeswoman Sara Wurfel said. "Bottom line is that for the governor and our executive office, we use state e-mail for official state business and personal e-mail for personal, non-state business. It's that simple," Wurfel wrote in an e-mail.
Democratic presidential candidate Clinton continues to face scrutiny over her use of a private e-mail account when she served as secretary of state.
Related:Duggan says neighborhood improvements on record pace Clinton handpicked work-related e-mails from her private account and earlier this year gave them to the State Department. The other e-mails on her personal server were permanently deleted. The Republican chairman of a House committee investigating the terrorist attacks in Benghazi, Libya, has criticized her and her attorneys for unilaterally deciding which e-mails to publicly disclose.
Philip Ellison, an attorney who has filed lawsuits and obtained documents regarding the Michigan town of Oakley's controversial policing program, said private e-mail use for official city business has the potential to degrade transparency because it makes responding to public records requests more difficult.
Rather than simply searching the city's e-mail system, those responsible for retrieving records "almost have to become private investigators," asking employees if they use private e-mail accounts, he said.
Deleting messages from a private e-mail system such as Gmail is much easier than erasing them from a city-operated system, which typically archives messages, Ellison said.
"You click delete, empty trash and away it goes -- like it never existed," he said.
Through the state's Freedom of Information Act, the Free Press requested copies of e-mails between Hollowell and Michael Samhat, an executive for the Moroun family's Detroit International Bridge Co., relating to the Riverside Park deal. The Detroit City Council is expected to vote Tuesday on the land swap.
The city produced five e-mails from Hollowell's Gmail account regarding Riverside Park and three from his city account. The city's cover letter accompanying the responsive e-mails said that Hollowell's Gmail records were "voluntarily provided," raising the question of whether the city considers those records to be public.
The city did not perform a legal review as to whether Hollowell's Gmail messages constituted public records as defined by the state's Freedom of Information Act, Hollowell wrote in response to the Free Press' questions.
"In the interest of full transparency, I treated all of the e-mails on both the city and personal accounts as public documents and turned over all e-mails relating to the FOIA request regardless of the account on which the e-mails were generated," he wrote.
Hollowell said he used his Gmail account during the Riverside Park negotiations because he cannot access his work e-mail account from his home computer. Hollowell said his public e-mail account, however, is synced with his personal iPhone.
"When I am working on a contract like Riverside Park where we will be exchanging multiple revisions, I use my personal e-mail account," Hollowell wrote. "This allows me to always be able to access the latest contract draft from home computer in the evenings to review the latest revisions and speed up the turnaround process.
"There is nothing in state law or city policy that restricts which e-mail account I use when not transmitting sensitive and confidential city data and there is nothing inappropriate about this practice," he continued. State law is murky on the topic of public officials' personal e-mail accounts. The law does not specify whether they are public records. It simply defines public records as "a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function."
Robin Herrmann, a Michigan Press Association attorney, reviewed Hollowell's Gmail records and said she thinks they are public records. She noted that the messages contained a signature block that lists his title as corporation counsel and business address.
"Although I haven't read every word of these e-mails, they all appear to be related to city business and would relate to official functions, government functions," she said. "I think they fall within the letter and the spirit of the Freedom of Information Act."
Regarding the city's e-mail policy, Herrmann said there is a case to be made that the messages were not in violation.
However, she questioned how the city would be able to follow state-mandated record retention laws if employees are using private e-mail accounts.
"The question is one of accessibility," Herrmann said. "If it's on a private e-mail address or a private server, then if the public body needs it, how do they get it? ... It's our information, we're paying for it, we're paying for you to do this stuff, we need that information."
Asked about retaining public records created and stored on workers' private e-mail accounts, Duggan wrote, "the responsibility for retaining the records for the statutorily required periods is that of the employee."
A recent investigation into the former mayor of a Dallas suburb shows the difficulty in accessing a public official's private e-mails.
Dallas news agencies requested copies of former Richardson Mayor Laura Maczka's e-mail exchanges with a developer. The Dallas Morning News reported that the information provided to it and others did not include several e-mails obtained by WFAA-TV through another source that were from Maczka's personal account.
The city then hired an investigator to find out whether the former mayor, who resigned in April to take a job with the developer in question, intentionally destroyed or hid any messages. According to the Dallas Morning News, the investigator forwarded his report to the the Dallas County District Attorney's Office.
(c)2015 the Detroit Free Press