Or is this New York Times article just a Democratic attempt to muddy the waters around Hillary Clinton’s scandal? A few weeks before the world found out about the private e-mail server used by the presumed Democratic front-runner, Jeb Bush made his work e-mails from his tenure as governor available for public scrutiny. However, Michael Barbaro reports that those e-mails should have been released more than seven years ago to the state of Florida, and that the delay violated state transparency laws:
Mr. Bush delivered the latest batch of 25,000 emails in May 2014, seven and a half years after leaving the Statehouse and just as he started to contemplate a potential run for the White House, according to a newly disclosed letter written by his lawyer.
A Florida statute governing the preservation of public records requires elected officials, including the governor, to turn over records pertaining to official business “at the expiration of his or her term of office.”
“If they’ve been adding to it, it’s a technical violation of the law,” said Barbara A. Petersen, president of the First Amendment Foundation, a nonprofit, nonpartisan group in Florida that advocates access to government information.
She added, “The law clearly says you’re supposed to turn everything over at the end of your term in office.”
Aides to Mr. Bush, an avid user of email, said they had provided many of his messages to his successor’s office as they were being reviewed for inclusion in the state archives, a process that dragged on for years because of the large volume.
The Florida statute is known, appropriately enough, as the Sunshine Law. It does not require continuous archiving of communications while in office, but it does state clearly that those records must be submitted when officials leave office, emphases mine:
(4)(a) Whoever has custody of any public records shall deliver, at the expiration of his or her term of office, to his or her successor or, if there be none, to the records and information management program of the Division of Library and Information Services of the Department of State, all public records kept or received by him or her in the transaction of official business.
(b) Whoever is entitled to custody of public records shall demand them from any person having illegal possession of them, who must forthwith deliver the same to him or her. Any person unlawfully possessing public records must within 10 days deliver such records to the lawful custodian of public records unless just cause exists for failing to deliver such records.
One might presume that there would be some forbearance for transferring large amounts of public records, although the transition in Florida after an election is nearly as long as it is for the presidency. Jeb Bush left office on January 2, barely two months after Charlie Crist won the election to succeed him, but Bush was retiring anyway. Plus, there’s a very large difference between quibbling over the difference between 10 and, say, 60 days … and 10 days and seven and a half years. It took Bush nearly as long to comply with this law as he had in two terms as governor, which hardly seems like a reasonable time for compliance.
Jeb’s team lashed out at Democrats yesterday, calling this a lame attempt to distract from Hillary Clinton’s corruption:
“I’m not surprised that the Clinton operatives would suggest that. That’s kind of standard operating procedure,” said Bush, who visited New Hampshire for the first time in 15 years as part of his exploration of a run for the Republican presidential nomination in 2016. …
Taking questions from reporters after a public roundtable at Integra Biosciences AG, a medical research equipment firm, Bush described himself as “totally transparent” and said he is pictured with a Blackberry smartphone in his official portrait.
“We complied with the law and we have now made my emails, long before Mrs. Clinton’s issues came up, we made them public for you to see,” he said. “So it’s totally different.”
There are some differences. Clearly the time delay is an objective measure of their non-compliance with the law, but they have very belatedly managed to rectify that failure. At least at the moment, it appears that Bush retained the entirety of his public record (although there are some questions about that, too). Politifact points out a couple of other key differences between these competing claims about the e-mail practices of Jeb and Hillary:
But while American Bridge tried to draw a parallel between Bush’s self-selection and Clinton’s current dilemma, we found nothing to suggest Bush’s editing had violated Florida’s Sunshine Law. State statute allows officials or an authorized custodian to determine which emails go into the public record based on whether they pertain to state business. The state archives only receive and preserve them.
Another big difference is that while Clinton was not open about her private email use, Bush was transparent about the fact that he was using a private account, according to First Amendment Foundation president Barbara Petersen.
“There’s nothing in the public records law about personal accounts,” Petersen said about rules in Florida. “Some agencies have policies discouraging the use of personal accounts, but that was after Bush left office.” …
Overall, the emails provide Bush with a talking point leading up to 2016, said Bill Allison, senior fellow at the Sunlight Foundation. He’s done what Florida law requires and exerted pressure on his presumptive Republican rivals.
The difference here is that Florida never required officials to use government servers for official business, and didn’t require the archiving of communications by an outside agency as the Federal Records Act did during Hillary’s tenure at State. Perhaps most importantly, Hillary used that system in violation of the law in order to avoid FOIA demands and Congressional oversight, while Bush’s records locations were well known and subject to such scrutiny. Bush’s actions aren’t exactly sparkling with luminous transparency, but Hillary’s were flat-out corrupt … and we haven’t even gotten to the Clinton Foundation yet.
Still, this is yet another reason for Republicans to apply more electoral scrutiny with Jeb Bush. He might be compliant now, but why did it take his presidential ambitions to finally force that kind of compliance with the law? If transparency is a virtue among conservatives — and it should be, as the Obama administration’s demonstration of the dangers of opacity has made clear — then Republicans have to ask whether Bush’s track record aligns with those values.