Court to rule on status of Ayotte e-mail

Last modified: 9/30/2010 12:00:00 AM
The case of Kelly Ayotte's 'legally deleted' e-mails during her tenure as state attorney general is now before the court.

Ayotte, a Republican candidate for U.S. Senate, served as attorney general from 2004 to 2009. For months, the opposing campaign of Democratic U.S. Rep. Paul Hodes has pressed both Ayotte and the New Hampshire Department of Justice on the e-mails, which were deleted from Ayotte's account but preserved on backup tapes.

Some of Ayotte's critics questioned her office's role in the state's failure to catch an alleged Ponzi scheme tied to the now-bankrupt company Financial Resources Mortgage. Under the state's Right-to-Know Law, researchers and the news media asked the Department of Justice to release copies of all e-mails Ayotte sent or received as attorney general. Ayotte requested that the department release the backup tapes in May. The Department of Justice has gradually released thousands of pages of Ayotte's e-mails. However, backup tapes with information about e-mails prior to May 2009 were reused before their data could be made public.

In a case heard earlier this month, Epsom attorney Paul Twomey asked a Merrimack County Superior Court judge to rule that legally deleted e-mails on backup tapes are subject to the Right-to-Know Law. Twomey says the erasure of the backup tapes was illegal under a law requiring the preservation of any material subject to a Right-to-Know request.

The Department of Justice says that the backup tapes are not considered government records and that requiring them to be saved could cost the state millions of dollars.

Twomey filed the court petition on his own behalf. A prominent attorney who previously represented the state Democratic Party, Twomey has donated $600 to Hodes's Senate campaign.

'When people use government computers to generate documents, those are the people's documents and they should be accessible to the people,' Twomey said.

The petition is based on a policy memorandum released by Ayotte's office in July 2009, two days before she stepped down as attorney general. The memo states: 'While courts have not yet addressed the issue, it is our view that electronic records that have been legally deleted and are available only on system back-up storage media are properly treated as no longer subject to disclosure' under the Right-to-Know Law.

New Hampshire law states that an electronic record is considered deleted only if it is no longer 'readily accessible to the public body or agency itself.' Simply moving a record into a folder for deleted items is not sufficient.

20,000 pages of e-mails

In August 2009, Geoffrey Andersen of California submitted a wide-ranging request to the Department of Justice asking for information including Ayotte's schedules, travel records, correspondence, caseload, expenditures and use of state vehicles. Anderson has been described in the news media as a Democratic operative and writer.

Reached by phone, he said he had clients and was not authorized to talk about why he was researching Ayotte.

'I'm not at liberty to discuss that,' Andersen said. 'I never intended to get sucked into a lawsuit.'

The department gave Andersen some of the information he had requested, but Associate Attorney General Ann Rice wrote to Andersen that Ayotte's schedule and e-mail correspondence was removed from the computer system when she left office.

Since then, in response to numerous Right-to-Know requests, the Department of Justice has produced about 20,000 pages of Ayotte's e-mails.

Associate Attorney General Richard Head said the Department of Justice has several methods of preserving e-mails, all of which are subject to the Right-to-Know Law.

The department has a software program called ProLaw that allows e-mails to be moved into a specific case file. Employees can print e-mails and put them in paper case files. When an employee leaves, his or her account is disabled. But Head said the disabled e-mail account continues to exist on an Outlook server.

Head said the department provided to the public all e-mails that were in Ayotte's in-box and her deleted messages folder at the time she left office. It also provided e-mails Ayotte had sent to other state employees who still had the messages in their in-boxes.

In addition, in July 2010, the department released 6,000 pages of e-mails it had obtained from backup tapes from May, June and July 2009. A press release from Attorney General Michael Delaney stated that the backup tapes from before May 2009 had been reused so the information was no longer available.

Twomey argued in his court petition that the backup tapes were readily accessible and should not have been erased after Andersen made his Right-to-Know request.

Regarding Ayotte's policy memo, Twomey wrote: 'To knowingly engage in the erasure of thousands of documents on the basis of an untested legal theory was reckless in the least.'

Twomey asked the court to nullify the Department of Justice's policy that backup tapes are not subject to the Right-to-Know Law.

Head said the backup tapes are not government records that must be preserved, but merely duplicate snapshots of records on a server and only used in case of disaster.

'The Department of Justice with the Department of Information Technology maintains a backup of its server for disaster recovery,' Head said. 'If our computer room catches fire, we can do business tomorrow by virtue of having backup tapes.'

Costly search

Head said the Right-to-Know Law does not require the state to produce every copy of a document. He said there are daily, weekly and monthly backup tapes, which are preserved for one year and then reused. But, he said, they are not 'readily accessible.'

In a court filing, Head wrote that state agencies do not have access to backup tapes. To obtain the Ayotte e-mails, the Department of Information Technology had to spend several hours re-creating an e-mail server. In addition, the state uses several different types of tapes, all of which require different devices to read. Both restoring and searching the tapes can take many hours, since the backup tapes are not easily searchable.

Head said in providing the backup documents in the Ayotte case, 'we went beyond what the Right-to-Know Law says.' By the time the department decided to go back in time, any tapes earlier than May 2009 had been deleted.

Twomey said he is only asking that the Department of Justice be required to search the year's worth of backup tapes that it already has.

But Head said if the court redefines backup tapes as public government records, that would trigger a requirement that every state agency save its backup tapes for four years. That would cost the state about $5 million, he said.

Head said the Department of Justice has spent more than 2,300 hours this year responding to Right-to-Know requests. Requiring the preservation and search of backup tapes would cripple the Department of Information Technology, he said.

'There is a reasonable balance associated with the Right-to-Know Law and agencies being able to perform their day-to-day functions,' Head said. 'I think the aspect of backup tapes is an element that is really beyond what is in the Right-to-Know Law.'

Ayotte campaign spokesman Jeff Grappone called the lawsuit an 'election-year stunt.'

'About 22,000 of Kelly Ayotte's e-mails and schedules have been made public,' Grappone said. 'In May, she asked the AG's office to make public all of her e-mails and schedules, including those on backup tapes. By contrast, Kelly asked Paul Hodes to release his government e-mails and received no response.'

(Shira Schoenberg can be reached at 369-3319 or

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