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Coakley: Mass deletion of City Hall e-mail an MIS screwup, not a criminal act

The state Attorney General's office said today no charges are warranted against mayoral aide Michael Kineavy for deleting e-mail because he was just doing what he and other City Hall employees were told to do: Purge their inboxes every day because messages would be stored on a back up server - which turned out not to be the case.

The AG's office says Kineavy did nothing intentionally wrong and it's not his fault the City Hall e-mail system didn't work the way IS told employees it did. Investigators found no evidence that Kineavy "double deleted" e-mail in a deliberate attempt to purge messages from what turned out to be a non-existent server.

Investigators found that while the city did have backup systems, they were intended only for recovery of key records after a disaster - which meant that when a worker deleted a message from his or her inbox, it quickly disappeared into the ether, rather than being saved.

See the comments below for a statement from the AG's office. Full report.

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Yeah, and I blew that red light because my wife was dying in the passenger seat...but they gave me a ticket anyways!!

The law says he can't delete those messages...and he did! What the flying fuck, Coakley!? Damn I hate you so much for so many reasons now.

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require proof of deliberate intent to violate (like the law Libby and Cheney broke when they outed covert CIA agent Valarie Plame.)

I don't know if the records act talks about intent or not. I'm going to dig in and see what I find.

By the way, I hate Coakley too. She's a political hack who does not apply justice without fear or favor. For her, justice is to be applied to the masses not the elite.

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which distinguish between first-degree murder, second-degree murder, voluntary manslaughter, involuntary manslaughter, justifiable homicide, and sometimes other categories as well (depends on the state)

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and I think it's whitewash because the one thing Coakley can't explain is what happened to the email is Kineavy's Sent Mail folder.

Who does not understand that backups occur at night and that a person who creates and deletes a file or e-mail in the course of a day (between backups) is able to avoid having the file backed-up? Even if every worker in City Hall did not know that, does that still mean Kineavy did not intend to delete his messages, those he received and those he sent? Of course it doesn't mean that; and Coakley is smart enough to know it.

Coakley says Kineavy did in fact delete "his emails on his desktop computer [Inbox in Outlook] and then empty his deleted items folder..." but that there is "no evidence that Kineavy “double-deleted” emails with an understanding that he was actually destroying them." What makes this statement work is the belief that backups run continuously. Who believes that?

I don't think it's a commonly held belief nor a reasonable indication of a lack of intent. Coakley does believe it is reasonable.

By why then does she not address what happened to the email in Kineavy's Sent Mail folder? Did they ask him what he did with the email in his Sent Items folder?

Did they depose Kineavy under oath and ask him about when he thought the backups ran? Did they ask if he considered that removing email from his deleted items folder or Sent Mail folder might may make them go away before the backup was run? Did they even ask him under oath if he intended to delete the records? Coakley's letter does not address this.

If he did clean out his Sent Items folder then isn't that sufficient indication that he had intent to destroy records ...sufficient enough to put it to a jury to find the facts?

I think we already know he cleaned out his Sent Mail folder daily becuase City Hall was unable to respond to a subpoena for records from the US Attorney due in part to Kineavy's procedures handling the e-mail he received and sent.

I don't even know what to say about the competence of the multi-million dollar computer forensic lab she built.

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Although I admit I periodically delete old stuff from mine because I'm, um, anal unretentive?

As a city taxpayer, I'm not too happy about what this says about the competence of the IS department at City Hall. But maybe that's because during my last two or three years at Network World, regulatory compliance was a major topic pretty much every week and I can't fathom nobody would have thought about the topic, but that's what seems to have happened.

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Michael J. Kineavy still at fault here?

Here me out. Given that the backup policy was so widely misunderstood - so misunderstood that just about every worker in City Hall believed backups ran continuously - and therefore that employees could comply with records laws even if they double-delete every email they receive and sent during the course of each day, who other than the Chief of Policy should ultimately be held accountable? Isn't that where the buck should stop?

Isn't the chief of policy ultimately accountable for not having policies that lead to the successful compliance with the records laws?

I would think the Chief of Policy and Planning should be asked to resign promptly for his failure to comply (himself) and for his failure to establish effective policies ... unless of course, we don't care if city employees comply with the law.

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Was the investigation too narrow? The very first paragraph limits it to one person and one offense, when it could be several people and/or a different offense. Bet you ANYTHING he skates, though -- administratively just as surely as legally.

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I don't think she could put Kineavy under oath if he's the subject of a criminal probe. That whole Fifth Amendment thing, right? And the legal analysis here seems pretty clear cut: it isn't a crime of strict liability if there's an official city policy saying that you should delete emails because deleting them isn't destroying them.

He knew what was happening. If low-level flunkies knew about "double delete emails" as mentioned in the p. 5 footnote, then he definitely did. But it's just impossible to prove when he's got a formal policy on his side (that enables this kind of behavior and would have been very publicly rewritten under Flaherty and/or Yoon).

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But how does "Menino Admin" policy trump MA state public records law?

It doesn't.

The policy is not a valid excuse for breaking the law, it is only an indication that he destroyed records unintentionally, because he believed (in good faith allegedly) that everything was backedup no matter what he did.

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It doesn't trump state law. Neither is it a valid excuse to break the law. But it is an extremely effective defense against charges brought under that law.

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but she could ask him to come in for an interview. law enforcement does that frequently. He has the option to participate or not, bring a lawyer or not. How he responds can be a good indicator of how to approach evidence collection.

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It appears from the posted report that he and a bunch of others, including Flaherty, came in and spoke to the investigators. Flaherty, btw, gives the same answer: "I didn't know delete meant destroy." Kind of makes his early outrage ring hollow now, though.

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What the AG's office says is that all City Hall employees were told to keep their inboxes neat and tidy - and delete stuff every day. Because, as required by state law, their messages would be saved on a backup server. Only they weren't, because the backup systems weren't set up for that, so Kineavy (and presumably others, including Michael Flaherty) had no reason to think their messages wouldn't be saved, somewhere. At least, until the Globe filed an FOIA request ...

Full report.

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Yup, IT FAIL.

That's exactly what I said probably happened back when this was all the rage as political fodder. Sounds like the system was only set to back up emails in the case and individual PC went down, or the email network went down. Once an email was deleted, it sent a command to the backup sever to also remove it.

This begs the question, who the hell is running city halls IT department so incompetently. Hell, even most small businesses aren't that stupid as to not keep some sort of cumulative, server side backup going.

Then again, wasn't it city hall that recently has it's webpage go down for days?

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... most state agencies are having the same problem. my division has the same policy, and technically we can delete (even the dreaded double-delete) anything we want because it's the responsibility of MIS to have back-ups. but, surprise, it doesn't really work in a practical sense.

i am on the side of "somebody messed up, or a bunch of somebody's messed up, and some people probably did so on purpose, they are bad people, but government is a messed up cluster fuck where IT is concerned and they underfund it to the point of starvation, so i am not even sure i blame the IT folks."

what troubles me is that this all went down a while ago, and while we should have learned from it, i'm not sure we have.

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Why Scott Brown is our senator.

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Seriously, you don't count on a user to store records by not deleting them. If you want to preserve records, you have the server save them. For all we know, Kineavey just assumed that the city's MIS group wasn't a bunch of @ss hats who collect checks for sitting on their thumbs.

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THE COMMONWEALTH OF MASSACHUSETTS
OFFICE OF THE ATTORNEY GENERAL
ONE ASHBURTON PLACE
BOSTON, MASSACHUSETTS 02108
(617) 727-2200
(617) 727-4765 TTY
www.mass.gov/ago

FOR IMMEDIATE RELEASE
MEDIA CONTACT:
July 29, 2010
Melissa Karpinsky
(617) 727-2543

Attorney General’s Office Completes City Of Boston Email Investigation
AG Coakley Issues Report Detailing Investigation’s Findings;
No Criminal Charges To Be Brought

BOSTON – The Attorney General’s Office has concluded an investigation into the email practices of a City of Boston employee and determined that the facts do not support criminal charges, Attorney General Martha Coakley’s Office announced today. The office has also released to the public a complete report on the investigation and its findings.

Coakley will hold a press availability to discuss the investigation’s findings at 3 p.m. at the Office of the Attorney General, One Ashburton Place, 20th Floor, Boston.

The investigation by the Attorney General’s Office sought to determine whether Michael J. Kineavy, Chief of Policy and Planning for the City of Boston, had committed a crime through his practice of routinely deleting emails and emptying various Microsoft Outlook Email folders on his work computer. The investigation included a review of thousands of pages of documents from the City of Boston, a forensic analysis of Kineavy’s computer systems, and the interviews of more than a dozen witnesses, with the last interview taking place in June 2010.

The Attorney General’s investigation revealed that, during the time that Kineavy routinely deleted his emails, the City of Boston’s Employee Handbook indicated to employees that all email was automatically retained by the City’s computer systems. Further, the City of Boston Archives and Records Management Division E-mail Management and Retention Policies specifically encouraged City employees to delete emails on a daily basis. Interviews with several City of Boston and Boston City Council employees revealed a misunderstanding among many employees about how the City’s email system worked and how emails were maintained on that system. Based on these and other factors, no criminal charges are warranted against Kineavy because there was no evidence that Kineavy was knowingly “destroying” his emails.

“Our office conducted an extensive investigation into the email practices of Mr. Kineavy,” Attorney General Coakley said. “Our investigation revealed that during the time Mr. Kineavy was accused of improperly deleting emails, the City’s own policies indicated that all emails were being saved on a back-up server and specifically encouraged employees to delete emails on a daily basis. It also revealed a shared misunderstanding by many City Hall employees that emails were being backed up on the City’s server. Based on these and other factors, the facts did not demonstrate that Mr. Kineavy was knowingly destroying his emails and do not support criminal charges against him.”

In October 2009, the Secretary of State of the Commonwealth asked the Attorney General’s Office to investigate whether Kineavy had committed a crime through his practice of routinely deleting emails on his City of Boston computer. The investigation was focused on a specific task – determining whether Kineavy’s deletion of email was a crime. To sustain a conviction, the prosecution must prove that the person charged had a certain state of mind; that is, they must prove that Kineavy knew that he was destroying public records.

The AG’s office conducted a comprehensive investigation with the specific task of determining whether Kineavy’s deletion of email constituted criminal misconduct. First, it requested and received documents through six separate, formal requests from the City of Boston and the Supervisor of Public Records. Second, AG investigators and members of the Massachusetts State Police interviewed several City of Boston employees with relevant information, including Kineavy, the City’s Management Information System Director, and Kineavy’s Administrative Assistant. The Office continued to develop information and follow possible leads, with the final interview taking place in June. Finally, the AG’s Computer Crimes Lab conducted a forensic analysis of Kineavy’s computer systems to independently determine whether the forensic evidence was consistent with information obtained through the interviews and with the documentary evidence.

Among the evidence revealed during the investigation included:

The City’s Email Policies

The investigation revealed numerous facts and evidence about the email retention policies of the City. First, from April 1999 through September 2009, the City of Boston’s Employee Handbook indicated to employees that all email is automatically retained by the City’s computer systems. A sample policy, from September 2009, is as follows:

All e-mail messages received and sent by City employees and affiliates are automatically stored on the City’s backup systems for three years on an interim basis. Further, employees and affiliates should be aware that even when a message is deleted, it may exist on a backup tape.

Finally, and perhaps most importantly, there was only one City policy in place at the time that Kineavy was regularly deleting his emails that mentioned the City’s records retention obligations. It was issued by the City of Boston Archives and Records Management Division. It actually encouraged employees, in concrete, easy to understand language, to routinely delete emails. The E-mail Management and Retention Policies, effective May 21, 2009, stated:

Except as provided below, the maximum retention period for e-mail shall be 90 days after the message is opened/read by its recipient, but employees are encouraged to delete the messages DAILY, immediately after reading, replying or taking other action concerning them.

Kineavy’s Email Practices

Kineavy stated that he had a long-standing daily practice of deleting his emails on his desktop computer and then emptying his deleted items folder in his email program. He stated that he did not believe that this practice actually resulted in the destruction of the emails but, rather, that they were saved by the City’s MIS Department.

As indicated by the specific City policies above, he had valid reason for such a belief. In fact, Kineavy was managing his email in a manner that was consistent with the direction he had been given by the governmental entity for which he worked.

Interviews with witnesses and forensic analysis of Kineavy’s hard drives produced no evidence that Kineavy “double-deleted” emails with an understanding that he was actually destroying them.

City Hall’s Email Culture and Email Practices of Other City Hall Employees

Kineavy’s belief that emails were saved by the City’s MIS Department was echoed during interviews of other City Hall employees. Those employees shared a common belief that “emails are forever” and could not be deleted. The investigation revealed a misunderstanding among City Hall employees – both in the Mayor’s Office and elsewhere – about how the City’s email system worked and how emails were maintained on that system. The prevailing view, supported by language in the City’s various email policies, was that the MIS Department “backed-up” emails and that deleted emails were never truly lost. That was simply not true.

Indeed, complainant and former Boston City Council President, Michael Flaherty, shared many of these same beliefs with respect to the hundreds of emails per day that he received at his City Hall email account. He believed, like other City employees, that City Council Computers were backed up and that the MIS Department was responsible for backing them up.

Since the initial public records request, there have been a number of steps taken to remedy the problems that were uncovered. Through an investigation by the Secretary of State’s Office, thousands of Kineavy’s emails were recovered and released to the public. The City of Boston has also purchased and installed equipment that permanently captures and stores all email sent or received by City Hall employees. It also had updated its email policies and begun implementing a more comprehensive public record training schedule. These changes are necessary to assure further compliance of City employees and to maintain the ability of law enforcement to hold those who do not comply with public records law accountable.

The Attorney General’s Office also believes that this case highlights the need for further changes to laws to ensure that the tools to ensure government transparency keep up with new technologies.

A full version of the AG’s findings can be found online by visiting www.mass.gov/ago.

The investigation was handled by First Assistant Attorney General Edward Bedrosian, Assistant Attorneys General Jennifer Miller, Tom O’Brien, Tom Ralph, and Judy Zeprun, and the Massachusetts State Police assigned to the Attorney General’s Office.
###

http://www.boston.com/news/local/breaking_news/Met...

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Does this mean the folks who lied about the City's servers retaining email should be found? In all seriousness, at the very least, this is fishy, and the lack of action stinks.

PS - hey Kineavey...it's called folders...that's how you clean up your inbox!

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How is _someone_ not on the hook for this?? The law says that the public should have access to these messages. We didn't because the personnel of City Hall failed to do their jobs correctly to abide by the law. I think Kineavy was complicit in all of this because of ALL of the "coincidences" surrounding this request and his skeevy activities as the Mayor's aide. Even if we agree with Coakley's conclusion that he was a simpleton and duped into his role in the whole affair...it STILL HAPPENED and that harmed the public's ability to keep an open government free from corruption!

If it happens again exactly as it did this time, is it just "oops, he was duped again!"? Someone, somewhere in City Hall failed to perform their role correctly to assure that the laws were being followed. They willingly screwed up in some way to void the public's ability to check on their government's actions. There need to be consequences for this!

The fact that this was all discovered and then "investigated" into well after an election involving the very administration that screwed this up in the first place is all the MORE reason that this can't go unpunished. If the unrecovered e-mails had been stoked full of malfeasance on the part of the Mayor and his assistants, then it could have completely changed the outcome of the election...as well as introduced a whole array of other charges of corruption...and now is not a time to just forget about that very real and potential consequence.

Stories like THIS need to be the multi-week attention grabbers from the papers...instead of some bullshit about where John Kerry's wife's trust docks a boat. This was a REAL crime against our TRUST in our government.

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No convenient scapegoat.

In Coakley's world, nobody wealthy or connected can ever be guilty of anything. No. She works very hard to find a convenient and often defenseless scapegoat to pummel the hell out of, grandstand on, and make it look like she actually did something about something. Let the Eappens sit in on the autopsy when they should have been suspects? Ignored the local friends on the big dig to attack a glue maker whose product was used inappropriately? Attacking artists with terrorism statutes over lite brites? That's our Martha!

There must have been a lack of little people to hate and pillory here - or, maybe, a despotic mayor who insists that he's in control of everything and could be pegged if she found some poor recently graduated IT guy to grandstand to death at full fury.

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The IT people were the target and they shall feel her full wrath...

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meh,

I worked for a rather large financial institution and folders don't help if you're getting 50 to 100's of emails a day. I even had outlook store a local backup in case I needed it, and that damn file was easily 14GB by years end which hindered outlooks performance and made searching for anything a chore. The only reason I did so was because of the stab in the back / throw under the bus nature of my co workers and hell if I was going to take the fall for their incompetence.

Still, the company also kept backups, but I knew I'd never see them.

People at city hall probably thought the same, and from what it sounds like were told the same.

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And people wonder how Scott Brown got elected.

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It seems the problem is with IT storage at City Hall. The individual followed protocol. Kill Martha for noshowing the Senate campaign, but Kineavy broke no laws.

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after this all went down last fall, the State scrambled to set a policy.
I always deleted(except important ones I needed) because you have limits on what you can store in Outlook folders and attachments can affect size too. We were instructed to set up .PST files that reside outside of Outlook and store more efficiently.
So now instead of deleting, I drag to my "saved emails".PST
But no one knew this in my agency until the City Hall incident.
I agree with Coakly's findings

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When I worked at City Hall, I deleted some emails, the really trivial ones, but kept the vast majority because I never knew what I might need to look at later. Having emails saved on some central server would not help me do my job very well- the point was that I have access to them. I still can't really believe that Kineavy deleted all his emails, every day, from all his mailboxes, for any reason other than a desire to hide his communications from an investigation or pesky info request.
Also, if this had been some schlep in Fitchburg or Greenfield's town manager or something, I guarantee he or she would have been fined and maybe lost his or her job if an investigation like this had been initiated. This was a predetermined outcome, and Coakley just waited nine months to make it look legitimate. Coakley needs Menino's foot soldiers in her reelection campaign- and can't afford to offend His Majesty any more than the local liquor store owner can.

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Chief of policy doesn't know the backup policy....irony?

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