This article first appeared in the St. Louis Beacon, March 3, 2009 - A long-awaited report by a state team of investigators examining how former Gov. Matt Blunt and his staff handled their office e-mails has concluded that the office's policies and actions were "insufficient to ensure proper compliance'' with state laws governing record preservation and open records.
The governor's lawyer replied that the report was based on "flawed factual assumptions and conclusions." The report is the last step in a December court settlement.
The report, and Blunt's response, were filed Tuesday morning in Cole County Circuit Court by Louis Leonatti, one of the two lawyers appointed by the court to pursue a legal case against Blunt and his staff after the judge ruled that the investigative team had no legal standing to do so.
The report's findings will have no impact on the case in question, because the December settlement of the suit avoided any finding of wrongdoing. In exchange, the Blunt administration released more than 60,000 e-mails to several news outlets who had been seeking them for more than a year.
However, the report may play a role in a parallel suit -- still in court -- launched by former Blunt staff lawyer Scott Eckersley against the former governor and four former aides. Eckersley contends that he was fired in September 2007 when he warned Blunt's staff that they were mishandling office e-mails that should have been preserved. The governor and the other defendants say Eckersley was fired for other reasons.
Eckersley said in a telephone interview night, "Despite the investigators' report, I reiterate the same thing I have said under oath, that these men (in Blunt's administration) knew the violations were being committed. They knew because I told them, both in writing and verbally. It seems to me that the political climate fueled and disarmed this investigation. It is a step in the right direction but far from finished."
Eckersley's dismissal was one of the factors that led to the appointment of the investigators, former Missouri Highway Patrol chief Mel Fisher and Rick Wilhoit, by then-Attorney General Jay Nixon. The team was charged with probing allegations that Blunt and his staff were intentionally destroying office e-mails so that they wouldn't have to comply with open-records requests from various news outlets.
In particular, the report shines a light on an 11-day period from Oct. 22, 2007 through Nov.1, 2007, in which it says that the governor's office ignored four specific open-records requests -- three from news outlets and one from a lawyer -- for the e-mail backup tapes.
Blunt's staff declined to forward those requests to the state Office of Administration, which would have those backup tapes. Such tapes are reused every 90 days, unless there are open-records requests. Because the Office of Administration had no knowledge of the open-record requests, the tapes were in effect erased when they were "overwritten," the report said.
However, the report added there was "insufficient evidence ... to either prove or disprove the allegation that there was any endeavor by an individual or a group of individuals to overwrite date contained on backup in the Office of Administration."
The report said that it appeared that Blunt and his staff had gotten faulty advice from then-chief counsel Henry Herschel regarding the status of e-mails. Blunt's staff had initially said they weren't public records, but backtracked later and acknowledged that some e-mails could be records that had to be preserved.
The investigators noted in their report that they were unable to interview Blunt.
And the report did point out that as of June 18, 2008, the Blunt administration and; the current Nixon administration were preserving all e-mails under a new e-mail archiving system ordered by Blunt on Nov. 15, 2007.
That was the same day that Nixon had announced he was naming the special investigative team to look into the controversy involving Blunt's staff and their handling of e-mails.
Blunt and his staff had questioned the investigators' authority to do so, and also accused Nixon, a Democrat, of playing politics because he already had announced his plans to run against Blunt in November 2008. In January 2008, two months after the investigators began their work, Blunt announced he was not seeking re-election. He denied any link to the e-mail probe.
Blunt's response filed Tuesday reflected that perception by asserting that the investigators' report was "rooted in no small part on legal assumptions and conclusions that are at odds with the text of the statutes on which they rely and unsupported by any case law."
The investigators' report had been scheduled to be filed in late January, but it was delayed during a dispute between the team, its lawyer, and the two court-appointed lawyers, Leonatti and Joe Maxwell. The dispute was resolved when new Attorney General Chris Koster said his office will pay for any legal costs that the team might incur, should they be sued by Blunt or one of his former aides.
Koster spokesman Travis Ford said Tuesday that, so far, the state has paid about $260,100 -- largely legal fees -- in connection with the report and the court case. That figure includes the payments to Leonatti, Maxwell and the investigators' lawyer, Chet Pleban, Ford said.
