With Clinton emails in spotlight, Cuomo orders New York data purge

As national leaders debate how best to preserve and review reams of email generated on private servers during Hillary Clinton’s tenure as Secretary of State, New York is grappling with a problem stunning in its contrast: the wholesale deletion of government emails in state-owned systems.

Clinton conducted all of her electronic correspondence through email accounts stored on a private server actually housed in the former cabinet official’s Chappaqua home. Faced with noticeable disquiet over the lack of access to and archiving of official correspondence, Clinton aids have turned over some 55,000 pages of what they say are relevant documents to the State Department, while Clinton herself tweeted “I want the public to see my email.” The Clinton team said personal correspondence has already been removed from the document dump, while State Department officials said it could take months to review the emails before they can be made public.

This same week, however, New York officials and good government groups are alarmed, as the state debate is not over the recovery of emails from private servers, but the deletion of official business from government archives, even as several investigations and legal actions concerning the state government continue.

When New York Governor Andrew Cuomo took office in 2011, he vowed to make his administration “the most transparent” in history, but almost instantly, his governorship became synonymous with practices that indicated the opposite — from fighting Freedom of Information Law (FOIL) requests for correspondence regarding use of state police transportation, to conducting “inner circle” communications over BlackBerry Messenger rather than email to avoid generating an official paper trail. Now under the microscope for tampering with a state investigative panel appointed to examine government corruption, Cuomo, undaunted, began implementing last week an email deletion policy that destroys all email older then 90 days at several state agencies.

The policy was initially proposed in June 2013, but had not been enforced until the state said it would purge archives as part of migrating official email to a single Microsoft system. With the flick of switch, only email designated as worthy of saving by individual recipients will be preserved past the three-month window.

How is a state official supposed to decide what is worthy? There’s a 118-page answer to that. In August of last year, ProPublica wrote that the document was “bewilderingly complex” and so daunting it could lead to no emails being saved at all.

And this has instantly proved to be more than academic, as correspondence pertaining to the banning of a private food truck from the grounds around Saratoga racetrack, a subject of pending litigation, has disappeared.

When asked about similar problems arising from the new deletion policy during February budget hearings, the state’s chief IT officer said “I, uh, all I can say is I fully support the policy” of deleting emails after 90 days.

Federal law currently requires email preservation for 3 to 7 years. Other states have archiving and deletion protocols, but those standards typically range from 2 to 10 years. New York’s new 90-day plan is considered fraught for a host of reasons.

“Sometimes things don’t become relevant-slash-important until after that 90-day period,” said Manhattan Assemblyman Danny O’Donnell, a Democrat, at the same budget hearing, pointing out that litigation almost never gets going in under three months.

State Senator Liz Krueger, also a Manhattan Democrat, who told Gotham Gazette that she was “horrified” by the email deletions, is drafting legislation to overturn the Cuomo administration order. But that language is still likely a week away, and because of its complexity, and, reportedly, the inclusion of the state legislature under FOIL laws for the first time, some lawmakers and open-government advocates fear the legislation will never pass.

Meanwhile, at a time when the national consensus is coalescing around a need for thorough preservation and better accessibility to public records of the electronic kind, Cuomo’s New York is rapidly erasing history.

The missing point to any of the coverage on this story, however, is why?

At least publicly, officially why?

Technical issues? Dave Maass of the Electronic Frontier Foundation told the International Business Times, “There's no technological reason that New York can't maintain these records indefinitely.”

How about cost?

Of all the things New York State pays for, server space has got to be one of the cheapest. This is not a discussion about the indiscriminant capture and storage of half the world’s telecommunications data — the sort of thing that has the National Security Agency building a $1.5 billion server farm outside Bluffdale, Utah — this a relatively small, in information-age terms, and very predictable amount of email. New York officials say they are migrating official data to the cloud — did the state not buy enough space? (Not to mention that there are ways of moving older material to long-term hard storage for future reference.)

For example: simple data storage on Amazon S3, one of the most popular commercial services, starts at about 3 cents per gigabyte per month — and that’s for the smallest retail customers. A personal email account in fairly heavy use might generate 10 GB of data in about 5 years. As of a few years ago, there were roughly 300,000 people directly employed by the State of New York or on the payroll of a myriad of state-related agencies.

Now, nowhere near all of those people have or need government email accounts, and, of the ones that do, not all are robust users or savers, but for the sake of argument, let’s say they all need to save 10 GB of email over the next five years, and let’s also assume that all that space has to be purchased in advance, even if the full capacity is not yet needed. At Amazon’s very worst rates, that storage space will cost the state about $90,000 a month — just over $1 million per year. But in reality, a storage deal wouldn’t cost a large government client anywhere near that.

Compare that to New York State’s total 2014 expenditures of $133 billion. Barely a rounding error, the way the state accounts for money.

What could cost the state money is the lawsuit now pending over deletion of emails in the food-truck dispute. The Attorney General’s office told the Albany Times Union that New York should not be liable because — get this — the deletions “happened automatically.”

Which is exactly how John Kaehny, head of Reinvent Albany, a transparency advocacy coalition, predicted Cuomo’s directive would be used.

Asked by the International Business Times last week about New York’s email purge in the face of a sweeping probe of state corruption by U.S. Attorney Preet Bharara, Kaehny said the policy “may mean that you could never be accused of obstructing justice or destroying evidence because you could claim that the machine automatically deleted it.”

“It creates a loophole and opportunity to destroy embarrassing emails,” Kaehny said.

It is just such opportunities that have journalists and good-government groups up in arms at the state level.

“He should be opening the books, not burning them after three months,” said Zephyr Teachout, author of a new book on government corruption and Cuomo’s chief challenger in last year’s election. As Teachout explained to Gotham Gazette, “Transparency isn't the full answer. X-rays don't cure patients. But you need them to figure out what's going on.”

There might or might not be different motivations on Capitol Hill, where Congressional Republicans are clamoring for access to Secretary Clinton’s emails, but the quotes have a familiar ring.

But in the case of Clinton, the fight is for access to what are believed to be preserved emails. In New York, thanks to Cuomo’s technological “upgrade,” that battle might already be lost.