He's been called the shadow governor. Now Todd Palin's role in state government is at the center of a lawsuit seeking state e-mails the governor's office has withheld for reasons such as "executive privilege."
Andree McLeod, a former state worker, has been seeking telephone and e-mail records since June for two aides to Gov. Sarah Palin. While she received boxes of records, others were withheld, including a considerable number of e-mails that were copied to the governor's husband, Todd.
So this week, McLeod went to court to appeal a decision by the governor's office to withhold the e-mails that included Todd Palin.
The central question: Does Todd Palin get special access to internal communications off limits to the general public?
No, McLeod argues.
"This latest refusal by the governor's office to hold back official state e-mails has left me no other choice," McLeod said. "And this is real important: The state can't cloak these communications in secrecy when the governor and her staff have broken the chain of custody by sharing them with a mere private citizen, who is not ... a state employee. Therefore, that entitles all citizens the right to examine these documents in the light of day."
McLeod's lawyer, Donald C. Mitchell, put it this way: "If Todd Palin is entitled to see them, then any other Alaskan, starting with Andree McLeod, is entitled to see them." The governor's office declined to comment on the appeal, filed in Anchorage Superior Court.
But her staff clearly sees the situation differently from McLeod.
In a Nov. 6 letter to Mitchell, the governor's chief of staff, Michael Nizich, wrote that Todd Palin is an adviser to Palin, and that the governor doesn't waive her privilege to keep internal deliberations confidential just because he received copies of e-mails.
"There is nothing inappropriate about the spouse of a chief executive playing such a role. The governor is absolutely entitled to involve him in policy matters as an advisor as she sees fit," Nizich wrote.
Dave Jones, an assistant attorney general with expertise in public records issues, said that he hadn't seen McLeod's appeal.
But in a 2000 case, he said, the Alaska Supreme Court allowed state records to be withheld even though private contractors to the state received copies.
"You can have communications outside state government and still have executive privilege apply," Jones said.
Court cases have determined that some records can be withheld if they relate to the decision-making process. Records also can be withheld for other reasons, such as if their release would violate an individual's right to privacy.
Jones said that executive privilege is generally limited to the governor and close advisors. The "deliberative process" exemption is somewhat different and extends to other state employees, but has been limited to matters that are "predecisional and deliberative," he said.
Both Jones and Mitchell, who is handling McLeod's case for free, agree that the specific question regarding a governor's spouse has not been decided by the Alaska Supreme Court.
"This has never been dealt with before because to the best of my knowledge, no governor has ever allowed his spouse -- because there have only been guys before Sarah -- to just wander through the various highest levels of state government," Mitchell said.
McLeod made a public records request on June 17 for telephone, text message and e-mail records involving two aides to the governor, Ivy Frye and Frank Bailey, between Feb. 1 and April 15. Her request was similar to that of another activist, Zane Henning.
While they each received bankers boxes full of records, many of the records were partial, with some portions blacked out for reasons including executive privilege and deliberative process. And they received a log of some 1,100 e-mails that were being withheld, most of them because of "deliberative process/executive." McLeod, through an administrative appeal, has since received some of those.
Todd Palin was copied on dozens of the withheld e-mails, if not more.
A firm count isn't available. State officials blacked out the private e-mail addresses being used by Palin, her husband, and others, and wrote in the individual's name. But at times, they mislabeled e-mails, McLeod said, saying they went to Bailey when they actually went to Todd Palin. Because of the mislabeling, it's impossible to come up with a number, McLeod said.