United States Project

How the Indy Star navigated a public records minefield to break its Pence email story

March 8, 2017
Vice President Mike Pence at the 2017 Conservative Political Action Conference. Photo by Michael Vadon.

THE REVELATION THAT VICE PRESIDENT Mike Pence used a private AOL.com email address to conduct state business during his tenure as the governor of Indiana prompted swift condemnations and a rush of coverage that touched on everything from information security to public records accessibility to partisan hypocrisy. By Saturday, even the “Weekend Update” anchors at “Saturday Night Live” took the opportunity to make a few jokes at Pence’s expense.

That coverage sprang from an investigation by the Indianapolis Star’s Tony Cook, who found that emails to Pence’s AOL account included sensitive information about homeland security matters. Pence had criticized former Democratic presidential candidate Hillary Clinton during her 2016 campaign for using a private email server. In his first public comments after Cook’s story broke, Pence said there was “no comparison” between his and Clinton’s use of private emails.

While much of the national conversation that resulted from the Star investigation has focused on Pence-Clinton comparisons, Cook says that focus is misplaced. His investigation exposed gaps in the state’s public records laws and ways that officials can use those gaps to manipulate access to information.

“While we knew that would be a major talking point, it in some ways distracts from what I think are the major public interest concerns that make the story important: security and transparency,” Cook tells CJR. “Personal email accounts are often less secure than government accounts—in fact, Pence’s personal account was hacked, exposing potentially sensitive information. Emails from personal accounts are also less likely to show up in responses to public record requests because they don’t necessarily create a record on state servers.”

Cook, who has been the paper’s statehouse reporter since 2014, says the story underscores many issues with Indiana’s public records act.

“There is no firm deadline for production, there are many broad exemptions, and the law is silent on the use of personal email accounts for government business,” he says. “So much is left to the discretion of public officials, and that can make it challenging to keep them accountable.”

Sign up for CJR's daily email

Indiana law does not prohibit public officials from using personal email accounts like Pence did. However, the law “is generally interpreted to mean that official business conducted on private email must be retained for public record purposes,” the Star explained to its readers.

RELATED: Study: Breitbart-led right-wing media ecosystem altered broader media agenda

Pence’s attorneys turned over 13 boxes of state-related emails to the Indiana Statehouse for archiving on the same day that the Star published Cook’s story. Gerry Lanosga, assistant professor at The Media School at Indiana University, questions why the emails were delivered on paper, particularly when the Indiana legislature once again is considering charging search fees for public record requests if they take more than two hours. (In another bit of irony, Pence vetoed a similar measure when he was governor).

“It doesn’t prove for a meaningful search if you take electronic records and convert them to paper,” says Lanosga. “They should stay in their native format. There should be inboxes worth of data that are being transferred to the state.”

Lanosga also expressed concern that the email records are just now being made available to the public after Pence has left office. “The administration is done and in the books,” he says. “This stuff should have been archived on a rolling basis and maintained somewhere where people knew of its existence.”

The Indianapolis Star first learned of Pence’s private email account by chance in 2014 while investigating a possible conflict of interest involving an Indiana health care consultant, Seema Verma, who is now President Donald Trump’s pick to run the Centers for Medicare and Medicaid Services. In a batch of emails released to the Star nine months after the investigation published was an email to Pence’s AOL account from a low-level staff member. When the issue of government officials using private email accounts became a controversial issue during the 2016 presidential campaign, the Star requested all emails between Pence’s AOL account and any state government account.

That request and a subsequent one were denied for lack of specificity—a tricky matter in Indiana’s public records law, which leaves room for interpretation. The law says only that requests should “identify with reasonable particularity the record being requested.”

Zachary Baiel, president of the nonprofit Indiana Coalition for Open Government, says government bodies are increasingly demanding greater specificity in public records requests. “It seems to be the new tone and tenor, whether at the state level or local or municipal level, especially when you are asking for emails,” says Baiel. “That’s where the shift is coming about, and not just in Indiana.”

Baiel says that requests for emails in Indiana usually must be restricted to a six-month span, and requesters should identify senders and recipients and include keywords to help sort content. For example, Baiel can’t request emails about the budget; instead, he must specify a departmental budget. “You have to be very precise,” he says. That level of precision leaves room for public officials to deny requests for information.

In its third public records request, the Star named a specific sender and recipient, which Cook says he selected based on their proximity to Pence and their involvement with security issues. The Star also confined its search to a six-month window and included keywords.

RELATED: Avoiding questions about Trump’s mental health is a betrayal of public trust

That request was approved on October 27, but the Star didn’t receive the emails until the last week in February, when Indiana governor Eric Holcomb released 29 pages to Cook. The Star noted in its coverage that Holcomb’s office “withheld an unknown number of others, arguing they are exempt from Indiana’s records laws.”

Ronnie Ramos, executive editor of the Star, says there are “still questions around Pence’s emails.”

“People were fixated on email servers and Hillary Clinton similarities, but it’s about transparency,” says Ramos. “I think there are a lot of challenge to doing public journalism in this state.”

He also praised Cook for successfully navigating the records request. “This story is about a lot of perseverance,” says Ramos. “A lot of organizations asked for those emails, but Tony was persistent about filing appeals and amending the order so we could try to get something back.”

On the same night that “Saturday Night Live” tried out its Pence material, the Vice President joked about the Star’s story in front of reporters at the annual Gridiron Club dinner in Washington. “My wife said it was good for my image,” said Pence, the headline speaker at the traditional white-tie event sponsored by Washington’s oldest journalism organization. “She said now America knows I’m not stuck in the ’50s. I’m just stuck in the ’90s.” For Indiana reporters tasked with chasing access to public records, the jokes likely fell flat.

Jackie Spinner is CJR’s correspondent for Illinois, Indiana, Ohio, and Wisconsin. She is an associate journalism professor at Columbia College Chicago and a former staff writer for The Washington Post. Follow her on Twitter @jackiespinner.