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Blunt attorneys denied ordering deletion of e-mails

Wednesday, November 12, 2008 | 7:11 p.m. CST; updated 9:56 p.m. CST, Wednesday, November 12, 2008

JEFFERSON CITY — Two attorneys who advised the governor's office on document retention denied telling computer technicians to record over backup tapes that store state e-mail records, according to depositions released Wednesday.

The state's deputy computer chief, Chris Wilkerson, has testified previously that he was told to reuse the e-mail backup tapes after a Sunshine Law request was submitted by The Associated Press.

That claim was also cited in a lawsuit filed against Gov. Matt Blunt over access to e-mails from his office. A bipartisan team of two court-appointed attorneys is continuing an investigation started by Attorney General Jay Nixon's office into whether the governor's office illegally deleted e-mails.

In depositions from that lawsuit, former Blunt general counsel Henry Herschel and former Office of Administration Deputy Director Rich AuBuchon each said there had been a misunderstanding and that they wanted the e-mail records preserved.

Wilkerson has said that he told AuBuchon he would not destroy e-mail backup tapes and was fearful that his refusal to do so could cost him his job.

State computer chief Dan Ross previously testified that after meeting with Herschel and AuBuchon on Oct. 31, 2007, he instructed Wilkerson to place the backup e-mail tapes back in rotation for reuse.

But Herschel and AuBuchon each said in their depositions that they did not instruct the backup tapes to be overridden.

"My directive to Dan was that in response to a Sunshine Law request, if you have a document, it must be — it must be disclosed," AuBuchon said. "If they're asking for information that is — that is on a backup tape, it must be copied."

Herschel said he intended state computer technicians to copy e-mail records from the backup tapes before putting them back in the rotation.

"(Others got) the idea in their head that somehow I was saying recycle without retaining," Herschel said. "And what I was saying was retain and recycle."

Nixon began a probe into the Republican governor's office after Blunt's former legal counsel, Scott Eckersley, claimed he was fired for raising concerns that Blunt employees may have deleted e-mails in violation of state open-records laws.

Blunt has denied that, saying Eckersley was fired for misusing state resources and other reasons.

After Eckersley went public with his allegations, the AP filed a Sunshine Law request on Oct. 31, 2007, for the backup e-mails of Eckersley, Blunt and several other top officials in Blunt's administration.

By that point, employees in the state's computer center already had started preserving the backup e-mail tapes, instead of continuing their normal practice of reusing them after about 60 days.

But Herschel said in his deposition that Wilkerson had decided to keep the backup tapes for longer than 60 days without consulting anyone. Herschel said he was angered by that decision because there could have been legal implications from having information that goes back longer than 60 days.

"Once we retain stuff, we retain it, OK?" Herschel said. "Now we have to Sunshine it."

In their depositions, taken last Friday, AuBuchon and Herschel also revealed that attorneys in the governor's office drafted a memo about the requirements for handling documents and e-mails under state record retention laws.

Herschel said he drafted the memo after the St. Louis Post-Dispatch requested documents and stated that all e-mails needed to be retained for several years.

Herschel said Eckersley then added a line to the memo before sending it out that asked Nixon's office to issue an attorney general's opinion that state law does not require keeping all e-mails for several years.

"I just went in and I said, 'You know, I just don't think Jay's got it in him to let us off the hook on that,' you know?" Herschel said.

The lawsuit against Blunt seeks copies of his office's e-mails at no cost. The governor's office has said it would cost nearly $541,000 to retrieve and review them for information potentially exempt from disclosure.

One of the employees responsible for retrieving records from the backup e-mail tape estimated in a deposition that it took about 190 hours at a cost of about $35 per hour. That adds to $6,650 to retrieve the e-mails. She said she did not know how the $541,000 was calculated.


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