Several Maryland Democratic lawmakers have introduced a bill meant to curtail the use by Gov. Larry Hogan (R) of messages that self-destruct in 24 hours, or at least bring them further to light. They say it was sparked by recent revelations about the governor’s use of the app Wickr to communicate about a range of public issues with top aides and other state employees.
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Transparency advocates say it is important that government communications and other records be accessible through freedom of information laws and handled with care, so that archivists, researchers and historians can document the operation of government for future generations.
The main provision of the new bill, called the Transparency in Public Records Act, would bring the governor’s office in line with state agencies required to set policies for how long different types of records must be kept. That would not necessarily stop the governor’s office from using Wickr. Most states, including Maryland, have yet to reckon with mobile apps that can destroy government communications before any determination of whether they should be public can be made.
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A Washington Post report in December detailed use by the governor and state employees of a Wickr network called “Larry Hogan” and chat rooms with names such as “Inner Sanctum,” “Executive Team,” “COVID-19” and “Front Office.”
Del. Vaughn M. Stewart III (D-Montgomery), who is lead sponsor of the House version of the bill, said his reaction to reading about Hogan’s Wickr use was “horror.” But rather than trying to ban a particular type of communications platform, he decided it made more sense to promote records retention inside the governor’s office in a broader way.
“I think if we polled the House of Delegates, we may get 141 different opinions for what folks think of new technologies and what should be in or out,” Stewart said. “But I hope what everybody can agree with is that the governor’s office should be required to work with the state archivist and the Department of General Services to come up with some plan to determine what to retain and what not to retain.”
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Hogan, who is considering running for president, has declined to be interviewed by The Post about his Wickr use, but he defended it at a January news conference. “It doesn’t take the place of official government communications, but we certainly have the ability to communicate in an informal way in person, on the phone and through messaging chats,” he said. “I think it’s a pretty common practice and there’s absolutely nothing wrong with it.”
Md. Gov. Larry Hogan’s messages to state employees self-destruct in 24 hours
According to guidance on the Maryland State Archives’ website, how long a record should be kept depends more on its content than whether it’s on paper, contained in an email or, say, sent via a Wickr message. “Transitory correspondence,” regardless of format, need not be kept once its usefulness has passed, the guidance says.
Among recent self-destructing messages obtained by The Post through a request under the Maryland Public Information Act was one sent by Hogan’s scheduler. It gave the whereabouts of a binder for the next day, conveying the location through a code name used by Hogan’s security team. The guidance suggests such a message could appropriately be deleted once the binder was located.
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But the content of some of Hogan’s Wickr messages suggests that under the guidance they should be kept longer than 24 hours. “Stop talking about 1,000 f---ing tests!!!!” he admonished staffers in a 2020 Wickr message, obtained by The Post from a former state employee, as the governor tried to keep the uselessness of coronavirus tests he had arranged from South Korea a secret.
Messages of that sort might qualify as “administrative correspondence” sent in the course of carrying out agency functions — which the guidance says should be kept for some number of years before destruction. But because it was sent by the governor, it could also qualify as “executive correspondence,” which the guidance says should be turned over to the Archives for permanent retention.
Under current Maryland law, each unit of state government must have a records-retention schedule. The governor’s office asserts it is not subject to this law because it is not a “unit of the state government” but rather its head. The new bill proposes to explicitly define “unit of the state government,” as far as record-retention-schedule law is concerned, as including the governor’s office.
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The governor’s office’s assertion predates Hogan’s administration. In 2010, the administration of then-Gov. Martin O’Malley (D) took that stance while defending against a public-records claim in a Frederick County Circuit Court case that was ultimately dismissed. The attorney general’s office argued that the legislative history of the record-retention-schedule law — passed in its first form in 1984 — “reveals no indication that the General Assembly intended to disrupt the traditional arrangement between the State Archivist and the Governor.”
That traditional arrangement, which lawmakers backing the bill now hope to disrupt, dates back to the 1940s. It has left governors deciding which records to save, with no formal policy, and state archivists trying to cajole them into saving more.
In a 1960 article in the American Archivist, former Maryland state archivist Morris L. Radoff described his successful attempt in 1946 to get then-Gov. Herbert R. O’Conor (D) to start handing over records before the end of his second term — avoiding a scramble on his last day in office.
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“We thought, too, that if we sat with him while he sorted his papers it might be possible to persuade Mr. O’Conor not to take away with him the files that he considered personal,” Radoff wrote. “Some ‘carrying off’ of records by a chief executive is always to be expected, but if possible the limits of what is personal should be set at something less than the scandalous depletion of files, which we have all encountered.”
Archivists everywhere still grapple with that issue. Last month, the National Archives and Records Administration retrieved 15 boxes of documents and other items from former president Donald Trump’s Mar-a-Lago residence that the agency said should have been turned over to the agency when he left the White House.
Edward Papenfuse, who served as Maryland’s archivist from 1975 to 2013, created guidelines for the governor’s office that included a “guiding rule” that was more of a plea: “When in doubt, save.” Another “general rule” was that “all email relating in any way to the operation of government should be saved and transferred to archival storage.”
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Elaine Bachmann, whom Hogan appointed as state archivist in June, has said a records-retention schedule from the governor’s office is “something we’d like to have.” In response to a public-records request from The Post, Bachmann said she had no communications from the governor’s office arguing it was not required to have one. “There was no written communication between the Governor’s office and the Archives asserting what was already an accepted and expected practice,” she wrote.
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Stewart said he doubts lawmakers ever intended to exempt the governor’s office from preservation requirements.
“Clearly the public has more interest in a record-retention policy for the governor than it does for, say, the Department of Transportation,” Stewart said. “It doesn’t stand to reason that the legislature would have crafted a record-retention policy and exempted the one instrumentality of the state that the public has the most interest in knowing about.”
Hogan’s administration has said he will turn over to the State Archives all emails, which are handled on a Google platform, at the end of his term, presumably late this year. The governor’s spokesman, Mike Ricci, told The Post last year that because the governor’s Wickr use is managed by his political apparatus, Hogan has given his staffers no formal guidance on when to use Wickr rather than email.
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“It gives them a wide-open, free path to not have to retain anything that they’re saying behind the scenes, on a piece of software that’s intentionally meant to mask their communications,” said Sen. Clarence K. Lam (D-Howard), who sponsored the Senate version of the bill.
Lam said that while Republican lawmakers may cast the bill as partisan, he does not see it that way. “We need to put an end to this and stop this whether it’s a Democratic or a Republican administration next,” he said.
Legislative committee hearings on the bill are scheduled for Tuesday.