Public Access Advocates: Pence Broke No Laws, But Created Dilemmas

Vice President Mike Pence created serious public access issues when he used a private email account for public business, but he didn’t break the law. That’s according to public access officials in Indiana. The Indianapolis Star reported last week that Pence used a private AOL account for government business while he was Governor of Indiana. Indiana Public Access Counselor Luke Britt says he tells public employees to be mindful when using private email accounts — but he doesn’t see Pence’s actions as going against the letter or the spirit of Indiana’s public records law.

“There’s no statute or prohibition against using personal email accounts for public business, ” says Britt. “Sometimes it’s a necessity, especially for smaller communities that might not have access to public email  servers. My advice is always to keep a copy of that message so that if someone were asked to provide it to send it as a public records request, that there is a copy of it, that that employee is being a good steward of that message as it pertains to public business. The emails that would need to be kept are only those that do pertain to public business.”

According to emails obtained by the Indy Star, Pence used his private account to discuss homeland security and security at his residence among other topics. The policy director at Common Cause Indiana, Julia Vaughn, says Pence’s conduct creates problems for Hoosiers who want to know what their public officials are doing.

“If you file a public records request for any email that the governor may have sent or received, what they’re going to search is the government account. So, this would certainly be of concern if routinely, government business is conducted via a private email account. That would be a big piece of the puzzle missing should  somebody request these records.”

Indiana Governor Eric Holcomb’s office released 30 pages of emails from Pence’s private account, but withheld an unspecified number because of confidentiality. The apparent legality of Pence’s behavior has led some to question the strength of Indiana’s public records laws. State legislators already refuse to release their emails, thanks to a legal exemption they carved for themselves. Vaughn says the problem is with enforcement.

“Well, I think on paper, the law is relatively strong, but it all comes back to enforcement, and that’s been a place where the law has proven to be weak. When there are public officials who simply refuse  to follow the law, there’s very little that that citizen can do short of taking them to court. Even then, they’re not successful. We’ve always argued that there should be financial penalties  that kick in a whole lot quicker should there be government officials who just refuse to comply with the law. Very few citizens have the time and the means necessary to actually see these cases through to the court level.” 

Former governor Pence’s private account was hacked in spring of 2016. A fake email was sent to his contacts that said Pence and his wife were stuck in the Philippines and requesting money. Pence then switched to a different, more secure AOL account. Now as Vice President, Pence does not use either AOL account, according to his spokesman Marc Lotter.