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The Hidden Paper Trail on the Campaign Trail

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Presidential candidates attempt to shield records of their past public service From the Winter 2004 issue of The News Media…

Presidential candidates attempt to shield records of their past public service

From the Winter 2004 issue of The News Media & The Law, page 23.

George W. Bush and Howard Dean, two former governors who have campaigned for the presidency by emphasizing their records as state executives, have ironically gone to great lengths to conceal their gubernatorial records from the American public.

The fight over Bush’s records ended with their release in 2002, while access to Dean’s records is still being litigated. Both fights were undertaken for the same reason: The public interest in knowing how a chief executive has wielded power is always great, but becomes much more so when an office holder is asking to be elected to a higher office because of his past accomplishments.

On Jan. 7, 2003, just a few weeks before leaving office, Howard Dean gave his final press conference as governor of Vermont. Reporters jovially prodded him about the possibility of a presidential bid — Dean spent much of 2002 traveling the country on an unofficial exploratory campaign — joking about which states he would need to win and his expectations for a second term as president. When asked why, a few days earlier, he had invoked executive privilege to seal a large portion of his records as governor, Dean cited “future political considerations.”

“We didn’t want anything embarrassing appearing in the papers at a critical time in any future endeavor,” Dean added.

The question referred to a “Memorandum of Understanding” that Dean had reached with State Archivist Gregory Sanford the week before, on Jan. 2. As did the two governors before him, Dean sought to seal portions of his official correspondence for 20 years, citing executive privilege. Even though six years was the precedent in Vermont at the time, Sanford eventually agreed to 10 years, which meant approximately 30 to 40 percent of Dean’s total record while in office would be shielded from the public until Jan. 10, 2013.

According to the memorandum, the 10-year period was selected as a “reasonable but brief period” that preserved “a full and complete record of Governor Dean’s administration for the benefit of future historians and the public’s right to know” while also respecting “the public policy reasons to deem certain gubernatorial documents privileged under the Vermont Constitution and common law.”

Such long periods of public inaccessibility are common.

Gubernatorial records in New Jersey have been sealed for as many as 20 years. In Maryland, records have been shielded from the public for 30 years. In Iowa, records have been sealed indefinitely. According to a 2002 study by Texas A&M professor Charles Shultz, of 42 states surveyed, only 29 require gubernatorial records to be placed in their state archives, and only 20 of those always do so. Presidential records are sealed for at least 12 years.

Vermont Assistant Attorney General Mike McShane argues that executive privilege from disclosure is a necessary tool for governors. “When governors decide to make policy decisions, they need to be able to get advice that is candid and frank that would be inhibited when the advice is public,” McShane said.

Outraged by Dean’s assertion of executive privilege to withhold his record to prevent damage to his political career, Judicial Watch, a Washington, D.C.-based government watchdog group, sent Dean a letter Sept. 25, 2003, demanding that he release his gubernatorial records.

“As you aspire to the highest elected office in the country, it is imperative that you open your official records to the American people,” Judicial Watch President Tom Fitton wrote. “Failure on your part to provide full disclosure of your records as governor raises disturbing questions concerning accountability and transparency.”

Dean refused, and Judicial Watch filed a lawsuit Dec. 3 in Washington County Superior Court in Montpelier, Vt. In Judicial Watch, Inc. v. The State of Vermont, the group argues that Dean’s future political plans are “not a legitimate basis for refusing to release public documents” under the state Access to Public Records Act.

Since news of a possible lawsuit broke in October, Dean has received a steady stream of criticism from open government advocates and his opponents in the Democratic primary. Dean now denies that political aspirations were the motivation behind sealing the records, saying he was only joking when he talked about “future political considerations.”

However, documents acquired by Judicial Watch under Vermont’s open records law contradict Dean’s assertion that his comments were merely part of his joking with reporters. Letters dated August and September 2002 from Sanford to Dean’s attorney, David Rocchio, and to Vermont Secretary of State Deborah Markowitz show that possible “embarrassment” during a presidential bid was indeed a consideration in the negotiations to seal the records.

John Dillon, the Vermont Public Radio reporter who first publicized Dean’s comments, does not believe that Dean was joking. Dillon said in The Washington Post on Dec. 12, “He wasn’t giving the punch line of a joke; he was answering a question. . . . He can sometimes be extremely candid.”

On the MSNBC program “Hardball” on Dec. 2, Dean said he actually sealed the records to protect the privacy of constituents who had written him about their medical problems, such as H.I.V. At a Jan. 4 debate in Des Moines, Iowa, he used the example of constituents who had written to him concerning the divisive Vermont civil unions issue as the reason behind sealing his records.

However, the Boston Herald and ABCNews.com have both reported that an examination of Dean’s open gubernatorial records turned up numerous letters from constituents concerning their medical problems, including H.I.V.

Attorney General McShane says letters from constituents would never be exempted by executive privilege, and that most of the sealed records are communications with advisers. Although Dean briefly mentioned the privacy of advisers during the Iowa debate, it is not an argument he has relied on in justifying the sealings.

Facing growing criticism on the issue, Dean has attempted to shift focus on the person he hopes to oppose for the presidency, George W. Bush.

“I’ll unseal mine if he will unseal all of his,” Dean told ABC’s “Good Morning America” on Dec. 4.

Bush’s efforts to conceal his record as governor of Texas were the subject of extensive media scrutiny and numerous complaints to the Texas Attorney General’s office throughout 2002.

In 1997, then-Gov. Bush signed a law authorizing former governors to house their records at locations other than the Texas State Library and Archives. A 1995 letter from Bush’s attorney Alberto Gonzalez, obtained by The Austin Chronicle under the state’s Public Information Act, shows that it was their intention to avoid the application of state law to the records. The records of all previous Texas governors, dating back to the first governor, James Pickney in 1846, are stored at the archives.

On Dec. 19, 2001, then-President Bush signed a one-page agreement authorizing his records to be placed in his father’s presidential library at Texas A&M University, a federal facility that was presumably outside the reach of the Texas Public Information Act. Within weeks, a number of media groups — including The Associated Press, Dallas Morning News, Houston Chronicle and The New York Times, as well as the public interest group Public Citizen — submitted requests for access to the documents.

Despite Bush’s attempts to conceal them, then-Texas Attorney General John Cornyn ruled in May 2002 that the records were the property of the state — regardless of their location — and must be made available under the Public Information Act. The Texas act does not provide for a broad executive privilege like the one Dean was able to use in Vermont. Instead, the act makes all records presumptively open unless the attorney general approves the application of one of the act’s enumerated exceptions.

Upon learning that Bush’s gubernatorial records had been unsealed since May 2002, Dean declined to do the same as promised. Instead, he announced that he would not defend the lawsuit filed by Judicial Watch.

“We have stepped aside,” Dean said. “We have turned everything over to the attorney general of the state of Vermont. And [he] will go to court, and a judge will look over every document in our records. And they are free to release whatever they’d like, and that’s fine with me.”

At a debate in Iowa, rival Democratic candidate Sen. Joseph Lieberman (Conn.) challenged Dean as to why he was making a judge go through the voluminous records. Dean should simply release the documents himself, said Lieberman, who has made open government part of his campaign platform (see sidebar).

“How can you and we take on George Bush and Dick Cheney, who have run the most secretive administration in our history, if you refuse to open up the records of your time as governor?” Lieberman asked Dean.

Dean replied that if his campaign were to start making decisions on what should be released, “nobody is going to believe us, and they’re going to say there’s more stuff in the record.”

Judicial Watch says Dean’s position is misleading. In a Jan. 5 press release, Fitton pointed out that Dean remains a party to the lawsuit and that Vermont Attorney General William Sorrell, a Dean appointee, is defending it in the former governor’s name. According to court documents, the attorney general is not asking a judge to review the records, but is instead asking the judge to hold that the Memorandum of Understanding is valid and dismiss the suit.

“Citizens have a right to know how decisions are made by their government. It’s our government, we pay for it and we pay for the decisions that are made,” said Tom Smith, director of the Texas office of Public Citizen.

“One should question the commitment of a candidate to open government if there is an attempt to withhold from the public purview how they exercise power and administrate their offices.”