In my story about the start of the new D.C. Council term, I briefly noted that members voted Wednesday to adopt rules that would, for the first time, require council employees (including members themselves) to use their official council e-mail accounts to conduct public business. Here’s a little more background on this small but important development.
Currently, there is no requirement that members or staff use their council accounts to do council business. That has complicated the council’s position with regard to public records laws, leading to a recent lawsuit: In October, the D.C. Open Government Coalition sued the council after it would not share work-related e-mails sent by members on their personal accounts.
The e-mails, the council said, were not in its possession and hence not subject to public records laws. The new policy aims to address this in two ways: First, it establishes a procedure for having council employees search their personal accounts for e-mails that are responsive to records requests. Second, it mandates that all council employees use their council accounts for official business no later than March 1 — or at least “[take] steps to ensure” that work e-mails sent on personal accounts are “otherwise incorporated into the Council’s records.”
Will the rule changes be sufficient to fend off the lawsuit? As yet unclear. James McLaughlin, who is co-chairman of the DCOGC’s legal committee and associate counsel for The Washington Post, said the group is still assessing the new rule.
There are reasons why the new rule might not represent a final solution to the council’s transparency issues. For one, there are no sanctions listed for breaking the rule. If a staffer is found to have used a personal account to evade disclosure, would they be reprimanded? Fired? What about a council member? Would using a personal account constitute a violation of their code of conduct? Could the matter be referred to the Board of Ethics and Government Accountability? None of that is clear.
Also, note that the rule requires those requesting council records to “specifically identif[y]” e-mails that might be found in employees’ personal accounts and make a “reasonable showing” that said e-mails are in the employee’s personal account. That could prove to be a difficult bar for a citizen to vault.
The rule is “not perfect,” Chairman Phil Mendelson (D) admitted Wednesday. “We’re going to have to look at it.”
But consider it encouraging that the measure passed without complaint from his colleagues. One member known for conducting business from a personal account, Jim Graham (D-Ward 1), raised concerns about the rule at a Dec. 20 conference but raised no objections Wednesday.
For years, Graham has directed constituents and others to reach him at his “grahamwone.com” address, an account he was able to easily access from home but is not hosted on government servers. “It was a matter simply of convenience, that’s all it was,” he explained Thursday.
Graham said he’ll continue to use his old address but will now be mindful to copy work-related e-mails to his official D.C. Council account.
The new rule, in full:
811. FOIA PROCEDURES.
(a) For purposes of the Freedom of Information Act, D.C. Official Code § 2-531 et seq., the Secretary, or the Secretary’s designee, shall be the Council’s FOIA Officer.
(b) To ensure accurate and timely compliance with the law, whenever a request is received under the Freedom of Information Act, D.C. Official Code § 2-531 et seq., it shall be forwarded to the Secretary within one business day of receipt. The FOIA Officer shall endeavor to provide documents under FOIA to requesters as soon as possible, and within the 15-day requirement established by D.C. Official Code § 2-532.
(c) Within one business day after receiving a FOIA request, the FOIA Officer shall inform the Councilmember or Council office that is the subject of the request. The FOIA Officer shall instruct the subject to put a preservation hold on, to search for, and to provide copies for any documents, emails, or other records responsive to the request.
(d)(1) Upon receipt of a written request for access to a record, the FOIA Officer shall make a good-faith effort to determine if the record requested is a public record and whether the Council possesses the identified record.
(2) If a requester specifically identifies an email that is a public record that is not in the possession of the Council, and where the requester has made a reasonable showing that the record is in the possession of a Council employee, including the Chairman and each Councilmember, the FOIA Officer shall request that the employee search for and produce the record believed to be in the employee’s possession. An employee receiving a request under this paragraph shall make reasonable efforts to search for and produce the record to the FOIA Officer within the time and in the form prescribed by the FOIA Officer.
(e) Before releasing any documents, emails or materials, the FOIA Officer shall give the subject 48 hours to review the documents, emails, and materials, and to assert any legally cognizable privileges or statutory exemptions from disclosure for a specific document, email, or material.
(f) The General Counsel shall make the final determination on whether particular records are privileged or otherwise subject to disclosure.
(g) By no later than March 1, 2013, a Council employee, including the Chairman and each Councilmember, shall use the employee’s government-provided email account to transact public business, including official action of any kind, unless the employee takes steps to ensure that any emails transmitted or received on an account other than the account provided by the government are otherwise incorporated into the Council’s records.