Boarding the campaign plane after coming to Alaska to vote on Nov. 4. (Bill Roth/ADN)

From Lisa Demer in Anchorage --

He’s been called the shadow governor. Now Todd Palin’s role in state government is at the center of a lawsuit seeking e-mails the governor’s office has withheld for reasons such as “executive privilege.”

Does being the husband of Gov. Sarah Palin give Todd Palin special access to internal communications off limits to the general public?

Andree McLeod, a former state worker turned activist, has gone to court arguing it does not. She is seeking an untold number of state e-mails that were copied to Todd Palin but withheld from a public records request she made in June.

“This latest refusal by the governor’s office to hold back official state e-mails has left me no other choice,” McLeod said. “And this is real important: The state can’t cloak these communications in secrecy when the governor and her staff have broken the chain of custody by sharing them with a mere private citizen, who is not ... a state employee. Therefore, that entitles all citizens the right to examine these documents in the light of day.”

In essence, McLeod is arguing that if Todd Palin was copied on the state e-mails, the governor’s office can’t keep them from the public for reasons such as “executive privilege” and “deliberative process.”

She is appealing a decision last month by the governor’s office to withhold the e-mails.

Palin’s office declined to comment on the litigation.
But in a Nov. 6 letter to McLeod’s lawyer, Donald C. Mitchell, denying her records request, chief of staff Michael Nizich wrote that Todd Palin is an adviser to Palin, and that the governor doesn’t waive her privilege to keep internal deliberations confidential just because he received copies of e-mails.

“There is nothing inappropriate about the spouse of a chief executive playing such a role. The governor is absolutely entitled to involve him in policy matters as an adviser as she sees fit,” Nizich wrote.

Dave Jones, an assistant attorney general with expertise in public records issues, said that he hadn’t seen McLeod’s appeal.

But in the past, he said, the Alaska Supreme Court has allowed state records to be withheld even if private contractors to the state received copies.

“You can have communications outside state government and still have executive privilege apply,” Jones said.

Alaska’s public records law doesn’t exempt the governor. But court cases have determined that some records can be withheld if they relate to the decision-making process. Records also can be withheld for other reasons, such as if their release would violate an individual’s privacy.

Jones said that executive privilege is generally limited to the governor and close advisers. The “deliberative process” exemption is somewhat different and extends to other state employees, but has been limited to matters that are “predecisional,” he said.

Both Jones and Mitchell, McLeod’s lawyer, who is handling the case for free, agree that the specific question regarding a governor’s spouse has not been decided by the Alaska Supreme Court.

McLeod made a public records request on June 17 for telephone, text message and e-mail records involving two aides to the governor, Ivy Frye and Frank Bailey, between Feb. 1 and April 15. Her request was similar to that of another activist, Zane Henning.

While they each received banker's boxes full of records, many of the records were partial, with some portions blacked out for reasons including executive privilege and deliberative process. And they received a log of some 1,100 e-mails that were being withheld, most of them because of “deliberative process/executive.”

Todd Palin was copied on dozens of the withheld e-mails if not more. A firm count can’t be done.

That’s because state officials blacked out the private e-mail addresses being used by Palin and her husband but mistakenly wrote that one of the private e-mail addresses was for Bailey. So it’s impossible to say how many e-mails were copied to Todd Palin.