Open Government: The gospel according to Colberg

As long as any communication by state employees, personal or state business related - via blackberry, email or handwritten leter - was done on company time, i.e. time paid for by the State of Alaska, it's public information. If these employees use their own devices from their homes AFTER HOURS, then it's not public. Otherwise, it's all subject to FOIA. Why didn't Talis think of that?

There's been an ongoing controversy about whether or not even the allowed de minimis use of State cell phones, laptops, PDAs, internet services, etc. represents a form of compensation to employees and thus must be reported to the IRS as taxable compensation.

I'm pretty sure this settles it; now that it is legally sanctioned to make PRIVATE, not governmental, use of these devices, the State can spend a few thousand dollars worth of Fiscal Section time every month going through the bills, emails, and histories to determine what is personal, private use, determining its value, and adding it to each employee's taxable compensation.

Sometimes I'm still amazed at what supposedly intelligent people do.

Andrew--is there an email tip line or just a telephone tip line for the Branchflower investigation?

I have just a phone line.

I find this very interesting as I have a relative that works for the state and he clearly knows the rules and abides by them. It is a lower level job, but he is emphatic about the use of the office email and what he can use it for. His whole office knows that the email and cells are for work use only. This is a no brainer (and my relative has brain damage!)

That people think they can get over on the state e mail rules is to log on to a yahoo or hotmail acct and send the message from a state computer. A very easy way to see if this is happening or happened is to look at the computers web log on the server. If they used a state computer then it should be public record, end of story. But I am sure that Mr. Branchflower knows that...

The opinion was requested because the e-mails so far released show planned abuse of the law by the governor and staff (eg Ivy Frye's questions to IT wondering if use of her personal account will shield e-mails- including state business and/or prohibited actions during the work day or using state resources- from disclosure) and Kreitzer is doing a CYA move.

According to a friend in state government, who is hoping to be suspended so she can be put on paid vacation like Frank Bailey, people are wondering why this opinion was not requested when Palin first took office, or when Ivy et al began their scheme to hide what they were doing from record requests. And she says nothing has come down from Kreitzer's office in the week since the opinion was written.

This is a formal, written opinion of the Attorney General and as such is the law unless and until a Court decides otherwise. Significantly, it was written by Bockman, the Ethics Attorney. More significantly, it represents a fundamental departure from the State's official practice regarding private use of State electronic resources.

Back in the "good old days" the only issue was either excessive time on a State phone or running up long distance bills on one. Excessive time would get you disciplined, running up long distance would get you disciplined and made to pay for them and might get you fired. Life was simple.

The Knowles Administration was in a heated rush to wire the State and get everybody on email and the internet. There were some pretty good fights between the "free internet" types with the Administration, e.g., Com. Boyer, and the tight-assed bureaucrats, like me, who wanted some rules on usage. At first the free internet types had the upper hand, but life being life and employees being employees, a high level IT employee in Public Safety used a State computer to make a date with a fourteen year old, at least it was a girl, and got caught by the APD. The Administration decided they might need some rules after all and the IT policy was promulgated and each employee obligated to adhere to it.

The key to State policy regarding electronic resources, and any other State resources, e.g., your desk drawer, is that it is NOT your resource and you have NO expectation of privacy in its use. The State explicitly tolerates de minimis personal use, but the price of being able to get the grocery list from your spouse by email is that it becomes the State's email and if somebody wanted your grocery list, they get it under the PRA.

This Opinion is a dramatic departure from that, and it is an unnecessary and foolish one. The AG has now countenanced PRIVATE personal use of State resources, something that is unprecedented. The Opinion is right, but the policy is wrong, stupid, and will bite this or some other administration in the a**. It is a policy question as to whether State employees have an expectation of privacy in the use of State electronic resources. If they do have that expectation, then Alaska's quite stringent Constitutional privacy protections inhere to the employees. But the Constitution does not guarantee them that privacy, it only protects them where they have the expectation of privacy.

State employees have never before had the expectation of privacy in ANY act related to their job or for which there is even a nexus to their job. The State rather routinely fires employees for off duty conduct for which a job nexus can be demonstrated. Now the State has said that some of your actions on a cell phone, Blackberry, or State computer are private and cannot be used against you or discovered under the PRA.

I have had some spirited exchanges with AAG Bockman myself over the contours and limits of the Ethics Act. I'm willing to bet this ain't her idea! I know most of the Labor and State Affairs (or whatever they're calling it this week) attorneys and I know they know better than to confer an expectation of privacy on State employees. So, the question becomes, Who made the policy decision and why?

It is evident to anyone watching that almost everyone in this Administration with a range that starts with a 2 uses Blackberries like Ninth Grade girls use their cell phone. It is equally evident that some very dumb things have been said and done on those Blackberries. Now they want to countenance a notion of privacy so those dumb things don't get spread all over the front page of the ADN as the result of a Public Records Act request.

Here's hoping that there's another dumba** in the wings to make a date with a fourteen year old or some such so that the utter foolishness of this shortsighted opinion will become evident and the policy will be reversed.

fact that Palin has the nerve to even ask the DA to draw up a 13 page legal opinion detailing what should and shouldn't be disclosed to the public from state computers and PDA's is the very halmark of people with 'nothing to hide'. Such activity is the very embodiment of running an 'open and transparent' government.

Please don't mind the EXTREME SARCASM FONT Another thing. Hey Palin, if you are reading this, take some of super Todd's BP money and go hire your own lawyer if you need someone to clean and cover up the mess you've made. Don't pay DA Talis to do it on the state's dime. After all, he is a prosecutor, not a defense attorney. His job is to put away the crooks. Not dream up dodgey, loophole filled legal opinions for slippery politicians to jump through and hide behind.