I appreciate our public servants. The laws under which they labor, however, sometimes drive me nuts.
I called a county register of deeds this morning to check on a couple of federal tax liens. These are public documents, filed by the IRS with local officials as record of the fact that certain individuals and businesses haven’t paid Uncle Sam what’s due. Alas, the nice woman in the register of deeds office couldn’t tell me anything about the liens for which I was looking, couldn’t even confirm their existence, unless I handed her money. So sayeth South Dakota Codified Law 44-7-8.2:
For responding to a request for information from the filing office, including communicating whether there is on file any lien, certificate, or notice affecting any lien filed under this chapter naming a particular debtor, the fee is as follows:
Twenty dollars if the record is communicated in writing; and
Fifteen dollars if the record is communicated by another method or medium authorized by filing office rule [SDCL 44-7-8.2, enacted 2005].
And alas, the office I was speaking with isn’t set up to take credit card payments, so the only way I can access these public documents or even get the nice woman in the office to confirm or deny their existence is to mail a check or drive down to this courthouse (and it’s more than an hour’s drive) and plunk $30 or $40 on the desk.
In additional statutory confoundment, I checked with another register of deeds about state tax liens. That office said I could sign in and look through the books myself and even take notes, but if I wanted to snap images of any documents with my phone, I’d have to pay a buck a picture, per SDCL 7-9-15:
The register of deeds shall charge and receive the following fees:… (2) For a certified copy of any instrument of record, including certificate and official seal, the sum of five dollars for the first page plus one dollar for each additional page or fraction thereof, and for an uncertified copy one dollar for each page. The fee applies to each copy whether it is a hard copy, microfilm, electronic copy, or facsimile transmission [SDCL 7-9-15].
Rep. Chuck Turbiville added that language about electronic copies in 2012 House Bill 1130—thanks for nothing, Chuck! I do all the work, use none of the county’s ink and toner, and you still squeeze a buck out of my hide? Come on!
I don’t think it would hurt the state to make its public documents more publicly accessible. I notice that SDCL 7-9-15(6) creates an exception for licensed abstractors to get uncertified copies of recorded instruments for different fees set by the county commission. Perhaps we could create another exception for journalists or anyone else who is interested in researching a lot of public documents. Think of it as a state park pass applied to courthouses: pay $30, and you can enter any courthouse, page through any documents the register of deeds makes available to the public, and make all the electronic copies with your own portable device on site that you want, without further charge.
Or we could just amend those statutes to recognize that our phones are extensions of our eyes and that the county and the state will only charge the public for copies of public documents when public workers themselves make those copies on public printers.
(Now wait a minute—what was Cory doing looking at federal tax liens, anyway?…)
“Office of the Secretary: Evaluation of Email Records Management and Cybersecurity Requirements,” issued by the State Department’s Office of the Inspector General [OIG] this week, offers the following alarming findings:
…OIG interviewed Secretary Kerry and former Secretaries Albright, Powell, and Rice. Through her counsel, Secretary Clinton declined OIG’s request for an interview [p. 2].
The Clinton campaign contends that her practices didn’t differ from the lax practices of her predecessors. But Clinton was the only one who refused to open up to the Inspector General. Additionally, out of the ten other individuals who either explicitly refused or did not respond to OIG requests for interviews, nine were Clinton people [p. 2].
In December 2014, in response to Department requests, Secretary Clinton produced to the Department from her personal email account approximately 55,000 hard-copy pages, representing approximately 30,000 emails that she believed related to official business. In a letter to the Department, her representative stated that it was the Secretary’s practice to email Department officials at their government email accounts on matters pertaining to the conduct of government business. Accordingly, the representative asserted, to the extent that the Department retained records of government email accounts, the Department already had records of the Secretary’s email preserved within its recordkeeping systems.
The requirement to manage and preserve emails containing Federal records has remained consistent since at least 1995, though specific policies and guidance related to retention methods have evolved over time. In general, the Federal Records Act requires appropriate management, including preservation, of records containing adequate and proper documentation of the “organization, functions, policies, decisions, procedures, and essential transactions of the agency.” Although emails were not explicitly mentioned in the Federal Records Act or FAM until the mid-1990s, the law has stated since 1943 that a document can constitute a record “regardless of physical form or characteristics” [p. 4].
Three problems here:
Instead of providing the government with the most convenient form of her records, Clinton dropped 110 reams of paper, tedious for any inspector or researcher to index, search, and reproduce, on the desk. That’s both wasteful and obstructive.
Clinton suggests that being able to comb through hundreds, maybe thousands of other government e-mail accounts to find her assorted e-mails ought to satisfy any record-keeping obligation. Again, that sounds obstructive and wasteful of government official’s time compared to simply handing over one’s inbox on a flash drive.
The OIG concludes that e-mails are pretty clearly included in the dictates of the Federal Records Act. Clinton appears to have failed to follow that law by not turning over her records upon leaving office.
We can perhaps blame State Department policy for all that printing, but the OIG appears to agree that Clinton violated the Federal Records Act:
As previously discussed, however, sending emails from a personal account to other employees at their Department accounts is not an appropriate method of preserving any such emails that would constitute a Federal record. Therefore, Secretary Clinton should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary.* At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act [p. 23].
*To support that statement, OIG cites 5 FAM 443.3, a guideline established in 1995.
It wasn’t just Clinton breaking this law; her staff held onto all sorts of improperly secured e-mails as well:
With regard to Secretary Clinton’s immediate staff, OIG received limited responses to its questionnaires, though two of Secretary Clinton’s staff acknowledged occasional use of personal email accounts for official business. However, OIG learned of extensive use of personal email accounts by four immediate staff members (none of whom responded to the questionnaire). During the summer of 2015, their representatives produced Federal records in response to a request from the Department, portions of which included material sent and received via their personal email accounts. The material consists of nearly 72,000 pages in hard copy and more than 7.5 gigabytes of electronic data. One of the staff submitted 9,585 emails spanning January 22, 2009, to February 24, 2013, averaging 9 emails per workday sent on a personal email account. In this material, there are instances where the four individuals sent or received emails regarding Department business using only their personal web-based email accounts. Accordingly, these staff failed to comply with Department policies intended to implement NARA [National Archives and Records Administration] regulations, because none of these emails were preserved in Department recordkeeping systems prior to their production in 2015. As noted above, NARA has concluded that these subsequent productions mitigated their failure to properly preserve emails that qualified as Federal records during their service as Department employees [pp. 24–25].
With regard to encryption, Secretary Clinton’s website states that “robust protections were put in place and additional upgrades and techniques employed over time as they became available, including consulting and employing third party experts.” Although this report does not address the safety or security of her system, DS [Bureau of Diplomatic Security] and IRM [Information Resource Management] reported to OIG that Secretary Clinton never demonstrated to them that her private server or mobile device met minimum information security requirements specified by FISMA [Federal Information Security Management Act] and the FAM [Foreign Affairs Manual] [p. 37].
In other words, Clinton tells us she kept her—wait, our—information secure, but we have no independent evidence to confirm that claim.
Making excuses for Hillary Clinton’s failure to follow information management rules is not as hard as making excuses for Donald Trump’s fascism. But I don’t want to have to spend the rest of this campaign making those excuses. Democratic National Convention delegates, you can spare us that trouble by nominating Bernie Sanders.
Gant’s change of the system came in the wake of the EB-5 scandal. A coincidence, perhaps, but easy Internet access to those business records was important. Now that easy access to the histories of those companies — and all companies beyond a few years — is gone. Evidently that is what was wanted [Bob Mercer, “A Public Record Vacuum w/update,” Pure Pierre Politics, 2015.09.23].
Mercer reported that Gant removed the documents in response to Gant’s own failure to keep those documents secure and then ignored orders to fix the problem:
Secretary of State Shantel Krebs said Thursday morning she has two people working part-time on restoring access to the records. She said the records were hacked in 2012 and Gant didn’t heed directives from the state Bureau of Information and Telecommunications and from the office of state Attorney General Marty Jackley to repair the situation [Mercer, 2015.09.23].
Wherever those documents were sitting, they were still accessible until Gant realized (in his fourth year in office) that the documents he’d shunted off to outside servers contained sensitive information. His solution wasn’t to get them back on a secure state server; it was to erase them. Millions of them:
Gant says that he didn’t take documents off of the public database until 2014, when he discovered that many contained corporate tax ID numbers or even Social Security numbers.
“My memory was around 2 to 3 million documents we had taken down–that’s how many corporate documents there are in the system and the reason was corporate identity theft. We wanted to make sure we were going to protect the businesses,” Gant said [Kennecke, 2015.10.06].
Hillary Clinton has caught holy heck over the past several months for using a private server while Secretary of State for her e-mails, which may have included some sensitive materials. South Dakota’s Secretary of State Jason Gant used something other than the official state server to store millions of documents containing information that he admits was sensitive enough to warrant deleting the whole batch.
If Gant’s old director of operations can cheer the attention Joel Arends got for joining the attack on Hillary Clinton for using private servers for official business, shouldn’t the local Republican war machine be calling for heads on pikes over the failure of Gant and his staff to (1) prevent the 2012 hack, (2) restrict sensitive information to a state server, (3) follow directives from the Attorney General and the state tech chief to fix the problem, and (4) come up with a better than just hitting delete on millions of public records?
These weren’t just emails of a former employee that Gant destroyed; these were public documents. Gant destroyed not only those documents but the value of thousands of past employee-hours and the vast utility for citizens statewide able to review all of those documents without taking state employees away from other tasks. Gant’s lazy decision also imposed new costs on taxpayers for document scanning and retrieval on taxpayers.
Gant had many important jobs as Secretary of State. He appears to have failed in all of them.
Just because Gant and Powers did not do anything illegal doesn’t mean they didn’t do something stupid – they did.
We get our first public look at the proposed constitutional amendment from Doug Kronaizl to strengthen the power of referendum and initiative in South Dakota. The amendment would allow voters to refer laws passed with emergency clauses; whereas regular laws referred to a vote are suspended until/unless voters approve them at the general election, referred laws with emergency clauses would stay in effect until the general election. The amendment would still allow the Legislature to monkey with initiated measures but would require a Nebraska-style two-thirds vote. The amendment would apply to any initiated measures passed in the 2016 general election or thereafter.
Newland and Ziegler’s similar proposal to ban the transfer of tobacco and tobacco-smoking paraphernalia.
A 95-section proposal to “provide for regulation, access and compassionate use of cannabis in South Dakota.”
Read these drafts with caution: until they are approved and stamped by the Secretary of State, this initiated amendment and the four initiated laws are all drafts. Sponsors may take them back, revise them, simplify or complicate, who knows what. But these documents give us our first complete look, in the sponsors’ own words, at the diverse topics the initiative sponsors want us to decide in 2016.
The release of these ballot measure drafts comes after I got to wondering (out loud, by e-mail, to the Attorney General) about how those documents might fit into South Dakota’s public records laws:
The Attorney General’s office has on file documents showing the draft text of five proposed ballot initiatives.
The documents appear to meet the SDCL 1-27-1.1 definition of public records and thus would be open to examination by any interested person under SDCL 1-27-1.
None of the exceptions of SDCL 1-27-5 appear to exempt draft texts of ballot initiatives from public examination.
SDCL 1-27-7 and SDCL 1-27-9 exempt certain “drafts” from public examination, but these statutes appear not to target ballot initiatives.
But now I’m really wondering: if the drafts of proposed ballot initiatives are public records when they hit the Attorney General’s desk, might they also be public records when they hit the Legislative Research Council’s desk in the preceding stage of the initiative process? And if that’s the case, could we make the same argument about draft legislation submitted by legislators to the LRC prior to the beginning of the Session?