In Washington, even though the Presidential Records Act requires White House documents to be preserved, a congressional investigation disclosed in 2007 that millions of Bush administration emails on a private server could not be accounted for — including emails from former Deputy Chief of Staff Karl Rove. President Barack Obama negotiated a compromise at the start of his term allowing him to use a private BlackBerry for personal and official business — provided that some messages would go to the National Archives at the end of his term.
Romney campaign officials said that Massachusetts governor's records are not subject to the state's public records law and that their preservation is voluntary. Mark Nielsen, Romney's former chief legal counsel and now a presidential campaign fundraiser, said that a 1997 Massachusetts high court ruling exempts the governor's office from any public records requirements. He said prior governor's administrations were not required to preserve emails.
"I don't think there has ever been an expectation that all electronic records or emails would be preserved," said Nielsen, who corresponded with Romney using private emails.
But Brian McNiff, a spokesman for the Massachusetts Secretary of the Commonwealth, which oversees handling of government records, said his office considers private emails used for state business to be government records and subject to preservation rules. "This office would contend they are public records and that retention rules apply," McNifff said.
Laurie Flynn, the department's chief legal counsel said last year that the governor's electronic files were subject to preservation rules. "There may be exemptions from producing them but they are still public records," she said, adding: "Even if they don't transfer records to the archives, they remain records of the office."
State rules in effect in 2006 required that internal, executive, "decision-making" correspondence had to be reviewed by state archives officials before destruction. A separate 2006 rule required executive emails to be preserved permanently. Current rules allow that correspondence about internal decisions and policies can be discarded after five years but only with permission from the state's records conservation board. New guidelines also warn that destruction of electronic records can proceed only in accordance with applicable laws and the board's approval.
When Romney stepped down as governor in early 2007, his administration turned over more than 630 boxes of documents to the state archives — a move that Romney campaign officials said exceeded previous administrations. But several former aides said those files included only limited materials from Romney's executive office. After the AP examined boxes of state archives last summer, it requested Romney-era email files from nearly two dozen Massachusetts agencies. The state turned over nearly 400 emails this week that included 10 emails written to or from Romney.
The newly released emails do not indicate how regularly Romney used private accounts for state business, but he used them during the work week and after hours and weekends. The emails also show that Romney used his official state email account at times, mostly for routine messages or mass mailings.
Massachusetts does not forbid conducting state business over private email accounts, but Romney's own administration warned one month after his inauguration in 2003 that using such accounts can be vulnerable to hacker break-ins and computer viruses.
The former chief information officer under Romney, Peter Quinn, said there were no known virus outbreaks linked to Romney or his staff but several viruses were traced to the state Legislature.
Romney used both a Hotmail account and a political email account linked to his mittromney.com presidential campaign website for at least four months in 2006, his last year as governor. In August 2006, Romney told a group of recipients who included at least one state official that all future emails were to be directed to the campaign account.