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In 2007, the year Iowa's Board of Regents created a new policy that all email exchanges involving five or more regents would proactively be made public, the board posted nearly 50 messages on its website.
It posted 40 emails in 2008 and 2009, 30 in 2010, and nearly 50 in 2011, spanning a variety of topics like university controversies, institutional reports, board actions, and public feedback.
But last year the board posted just 12 emails that went to a majority of board members, eight of which were meeting notices. The 2014 emails proactively made public did not include several that went to the entire board and were obtained by The Gazette through separate records requests.
Those not made public, but should have been according to the 2007 policy, included a September message related to the board's state appropriation request; a May message from the University of Iowa Faculty Senate expressing concerns with a proposed change in regent funding; and several related to public records requests.
Michael Gartner, who was board president in 2007 and behind the new communications policy, told his colleagues at the time that the new practice addressed the question, 'When we communicate by email, are we less transparent than we could be and should be as a state agency?”
'We must, of course, communicate between meetings,” Gartner wrote in an email. 'But we also must be transparent.”
Yet today, emerging technologies and increased scrutiny of public officials' use of electronic communication - both nationally and locally - has skeptics wondering whether some are finding ways to become less transparent, instead of more, said Frank LoMonte, executive director of the Washington, D.C.-based Student Press Law Center.
'I suspect there are a combination of things going on,” he said. 'People are purposefully not creating a trail so that their actions are not scrutinized. And I do think a lot of government officials have their emails on a tight purge, knowing that they are subject to disclosure of public records.”
Former secretary of state and Democratic presidential hopeful Hillary Clinton recently has been in the spotlight for her use of private email to conduct public business. Clinton said she's released relevant email from the private account, but critics argue they can't confirm that because her staff decided what qualifies as government business.
LoMonte said the turning over of public records at the national and local level always has operated on the 'honor system.” But, he said, emerging electronic mediums for communication make it easier to skirt the law or the spirit of the law.
'There is a lot of concern about how much information we are losing because people do so much of their business electronically, and it's so easy to destroy the trail,” he said. 'The person who is bent on concealing what they're up to can so easily destroy personal records that it does open it up for the risk of abuse.”
‘Depends on the type of record'
Iowa's public records law applies to records stored or preserved in any form, including electronic records, meaning members of the public can request copies of electronic records at a reasonable cost. But the code doesn't specifically address retention of electronic mail.
Instead, Iowa law outlines when email qualifies as a record requiring retention - stating it must be evaluated for content and purpose. Pertaining to the Board of Regents, Iowa Code requires it adopt records-management rules for employees, agencies, and institutions.
And Aimee Claeys, associate counsel for the regents, said the board follows state policy and guidelines, meaning it doesn't have rules specifically addressing email.
'You have to evaluate its content to determine where it fits on the schedule and how long you need to retain it and if you can destroy it,” she said. 'It depends on the type of record it is.”
When regents are appointed, they're trained on open records requirements. In filling public records requests, board members are asked to forward emails that might be responsive. The board has no process in place to ensure it collects all relevant emails, but Claeys said she has no concerns about board members complying with the law.
In response to questions related to emails posted on the regent website, the board office said, 'In an effort to better manage the Web page, the board office does not post certain routine communications or information that is otherwise generally available to the public, such as news articles.”
Kathleen Richardson, executive director of the Iowa Freedom of Information Council and a member of the Iowa Public Information Board, said when the regents' new communication policy went into effect, she thought it was a positive step.
The decrease in emails posted to its website could mean the board simply is sending fewer emails, Richardson said.
'I do know that there are lots of government officials who are increasingly cognizant of the fact that everything they put in emails is subject to a public records request,” Richardson said. 'Officials at all levels of government are becoming much more circumspect of what they put in emails and how they use email.”
‘Swing and a miss'
In filling a recent request from The Gazette for correspondence involving performance based funding-related state appropriations between January 2013 and August 2013 - around the time regents created a task force to consider a new funding model - the board office produced four email exchanges.
Board members and staff had three email exchanges in the months preceding news that AIB College of Business in Des Moines planned to gift its campus to UI, according to a records request. The board produced three email exchanges related to a controversial Ku Klux Klan statue on the UI campus in the days that followed.
And the regents and staff sent and received no emails about UI President Sally Mason's retirement in the weeks leading up to her announcement, according to the board office.
Richardson said board members simply might not have sent emails on those topics during the periods in question, or they could have purged them before the request came in.
'It does seem unusual that there wouldn't be any emails, or so few,” she said. 'It could be that they're leery of committing anything to email that might be secured in an open records request.”
Regent Bob Downer told The Gazette he believes the board has been conscientious about responding to public records requests.
'At least in my case, the time period has been short enough that I have not permanently deleted anything,” he said, adding that perhaps email is being used less than in the past. 'But I don't recall that I've had a particular uptick in the number of phone calls or other sorts of communications.”
More than two years ago, in February 2013, the Board of Regents formed a transparency task force charged with recommending best practices for responding to public information requests and for providing additional access to public information.
Downer said he hoped that process would result in a public comment period at every Board of Regents meeting, but that didn't happen. Instead, the task force recommended the board hold a public comment hearing at each regent institution before the actual meeting.
'I have not seen any real significant change,” Downer said.
Sen. Jeff Danielson, D-Cedar Falls, served on the transparency task force and said he was and continues to be disappointed with the group's recommendations.
'None of the recommendations dealt directly with the Board of Regents,” he said. 'They all dealt with the institutions and their public information processes.”
Danielson said he too wanted the board to add a period for public comment on its meeting agenda, and he feels the 2013 task force hasn't brought about much change.
'It was a swing and a miss when it comes to the regents themselves,” he said.