Why Deleted E-Mails Matter in JP

November 6, 2009
By

John Ruch

Mayor’s Office, BRA late on records requests

A scandal broke in September over Mayor Thomas Menino’s top aide—and apparently other city and Boston Redevelopment Authority (BRA) officials—deleting thousands of official e-mails that should have been saved as public records. While the situation did some political damage to Menino, the criticism has focused mostly on technical bits of public records law.

But the e-mail deletions may have directly affected the public’s right to know about powerful government activities right here in Jamaica Plain, including the possibly corrupt dealings of a state senator and the BRA’s oversight of a $200 million development project.

Six months ago, the Gazette filed a Freedom of Information Act (FOIA) request with the BRA for public records relating to the local Jackson Square community advisory committee (CAC) organized by the BRA and appointed by Menino. The FOIA request specifically included e-mails, but the Gazette received only a few e-mails from the BRA and no response at all from the Mayor’s Office.

It has since been revealed that BRA officials and mayoral aide Michael Kineavy were deleting e-mails without full back-up archives during the period covered by the Gazette’s FOIA request. Kineavy went on a “leave of absence” last month as the scandal deepened.

The Gazette filed a second FOIA request in September with the Mayor’s Office and the BRA. The BRA has not responded at all. The Mayor’s Office is now “working on” the request after a delay caused by City Hall’s internal mail delivery system, according to Mayor’s Office spokesperson Christopher Loh, who contacted the Gazette the day Kineavy went on leave.

Mayor’s Office spokesperson Dot Joyce did not respond to a Gazette e-mail requesting comment and asking whether other City Hall staff had lost e-mails as well.

The e-mail scandal has revealed a handling of public records by city government already familiar to the Gazette and other residents: records kept with lax rules and little staff training, and responses to public records requests that include dismissiveness, long delays, incomplete information and total silence. The problems are not universal, but they are common. The Gazette also has encountered the problems when formally seeking public records on police car crashes and payments in lieu of taxes made to the city by colleges and hospitals.

Kineavy’s e-mail deletions were discovered only when the Mayor’s Office made a long-delayed response to a Boston Globe FOIA request. Kineavy reportedly deleted his e-mails as part of a preference for office neatness, believing they were being archived on a back-up system. It turned out that system did not fully exist, even though a city commission was working on it.

The Globe later revealed that BRA officials also were deleting e-mails without proper back-up until a judge last year ordered a fix as part of a lawsuit over a controversial Roxbury mosque project that, critics claim, involved behind-the-scenes deal-making. The judge’s concern was the potential loss of evidence.

In Globe and Boston Herald reports, a city attorney at first denied that Kineavy’s e-mails were public records and dismissed the situation as a glitch. Menino called the scandal part of “silly season,” referring to criticism he got from the three candidates who were challenging him for the Mayor’s Office on the September ballot.

At a comedy roast for local City Councilor John Tobin held on Sept. 16, shortly after the scandal broke, Menino joked about it. “I was late because I was looking for my e-mails. Anybody seen the e-mails walking around here or something?” Menino says in footage of the event available at www.VoteJohnTobin.com.

The situation became more serious when Massachusetts Secretary of State William Galvin intervened. He declared Kineavy’s e-mails as public records, ordered Kineavy’s computer seized, and demanded that the city hire a company to retrieve the e-mails, which still exist as bits of computer code. A second computer used by Kineavy, containing more deleted e-mails, was recently found, according to Globe reports. Galvin has since referred the case to state Attorney General Martha Coakley for legal review.

Thousands of e-mails have been recovered and posted online, but many more have not. A city attorney drew fire for claiming it will cost $250,000 to do so. The e-mails were posted online in a hard-to-use format that does not allow their contents to be searched.

The city has since created a better e-mail archive system and an official policy to teach employees about saving e-mails.

One of the recovered Kineavy e-mails addresses a public records request. In the e-mail, Menino’s liaison to the City Council asks Kineavy if it is OK to release public records about payments in lieu of taxes (PILOT) to local City Councilor Chuck Turner—records that, by definition, Turner and anyone else has every right to see.
JP effect

A major subject of JP interest in Kineavy’s recovered e-mails is former state Sen. Dianne Wilkerson, who is under federal indictment on corruption charges, in part for allegedly helping a nightclub get a liquor license in exchange for bribes. Kineavy, who reportedly worked with Wilkerson in getting the license, is not accused of wrongdoing, but did have his records—including e-mails—subpoenaed by federal investigators.

The potential loss of evidence in the case of Wilkerson, who represented most of JP, is a serious concern. Recovered e-mails relating to Wilkerson’s case reportedly were turned over to the FBI without being made public.

The Gazette’s request for CAC e-mails came out of another transparency issue. The Jackson Square CAC banned the media from its meetings for three months earlier this year, drawing widespread criticism. The Mayor’s Office and the BRA claimed they could do nothing about the secret meetings. A Gazette investigation found that the influential CACs are formed with no standard rules, structures, operating procedures or documentation.

CACs are organized by the BRA and appointed by Menino, who typically meets privately with CAC members in an “orientation” session. Members reportedly are notified about their appointments by the Mayor’s Office of Neighborhood Services (ONS), which Kineavy headed in recent years.

Six months ago, the Gazette submitted FOIA requests to the BRA and the Mayor’s Office for all records relating to the nomination, appointment, training and orientation of members of two CACs in Jackson
Square and Mission Hill.

The only response was from the BRA, which only provided the Gazette access to two existing file folders on the CACs, which were incomplete. The Mission Hill file contained some e-mails that had been printed out years ago. The Jackson Square file contained no e-mails.

The new FOIA requests the Gazette submitted in September to the Mayor’s Office and the BRA were also about the two CACs, this time specifically requesting e-mails. The Gazette also requested clarification on whether any e-mails relating to the CACs were deleted. The Gazette has received no response to either FOIA except for Loh’s update that the Mayor’s Office and the BRA are working on the request. “I know they definitely have some stuff up there [at the BRA],” he said.

BRA spokesperson Jessica Shumaker told the Gazette the BRA has had software to archive e-mails, even if they are deleted, since August 2008. But the Jackson Square and Mission Hill CACs were formed before then. It is unclear whether the e-mails sought by the Gazette ever existed or survive if they did.

Shumaker said that the BRA previously had an e-mail archive system, but, like the City Hall system, it worked only at the end of the day, allowing some e-mails to be deleted permanently. She could not say whether any e-mails were actually lost that way. “I don’t know people’s personal [deletion] habits,” she said.

Shumaker also could not say whether the e-mails sought by the Gazette exist, saying it would require a search.