EDITORIAL: Bullock's missing emails as attorney general raise larger questions

 It was shocking to discover last month that Gov. Steve Bullock, when he served as attorney general, did not retain or turn over any emails he wrote during his time in office.

It is perhaps even more shocking to discover last week that Chief Deputy Attorney General Alan Joscelyn believes the state’s Department of Justice does “not have the statutory authority to investigate this matter outside of making inquiries with existing employees at the Department of Justice.”

If that is true, it’s a sad state of affairs. 

At the time the Bullock was attorney general, his records were governed by Title 2-6-205 of the Montana Code Annotated, which declared that every state employee had a duty to preserve public records and to turn those records over to his or her successor.

The only exceptions required compliance with the Secretary of State’s Record Retentions Schedules or unanimous approval of the State Records Committee, as explained in Title 2-6-212.

For a constitutional offcer such as attorney general, there was an additional obligation to turn over official records to the Montana Historical Society (Title 2-6-304).

In other words, former Attorney General Bullock should have turned over his public records to current Attorney General Tim Fox or to the Historical Society, or both. Emails on public business are indeed public records, but Fox says that no emails were turned over. Are we really supposed to believe that in four years, Bullock never sent or received any email on a matter of public interest?

That certainly stretches credulity to the point of gossamer, but it is also highly unlikely that Fox cannot track down at least some of those emails to determine whether they in fact were public rather than private correspondences.

Attorney General Fox is asserting through his deputy that Bullock had the sole discretion to determine whether his emails were public records or not. That may indeed have been the case at the time, but we wonder whether adequate investigation has been done to determine whether or not those emails were indeed public records.

The key point to remember is that under Title 2-6-205, “All public records are and shall remain the property of the state. They shall be delivered by outgoing officials and employees to their successors...”

Yes, the law, as it existed at the time, did give then Attorney General Bullock the opportunity to delete “in consultation with staff members of the Montana historical society” papers of a “purely personal nature” (Title 2-6-304).

The question at this point is whether or not members of the Montana Historical Society were indeed consulted, and if so, whether or not they have been thoroughly questioned by Attorney General Fox to determine whether the public’s records were indeed protected.

We challenge Attorney General Fox to publicly address this issue himself instead of relying on a deputy. As the constitutional officer in charge of the Department of Justice, it falls directly to Fox to assure that the law was followed.