Lawsuit over D.C. Council e-mails is settled

January 23, 2013

Council Chairman Phil Mendelson included new e-mail guidelines in the council’s new rules package. (Sarah L. Voisin/The Washington Post)

Updated 4:15 p.m. with comment from Mendelson

Three weeks after the D.C. Council adopted new rules on the handling of public business on private e-mail accounts, a lawsuit challenging the council’s old policy has been settled.

Lawyers for the council and the D.C. Open Government Coalition, which brought the lawsuit, filed papers in D.C. Superior Court on Wednesday agreeing to end the litigation.

The coalition sued in October after it had filed a Freedom of Information Act request seeking work-related e-mails sent on accounts not under government control. The council refused to provide the e-mails, arguing that because they were not directly in its possession, they were not subject to disclosure.

The new council rules, adopted Jan. 2, mandate that all council members and staff endeavor to use their government accounts for all official business no later than March 1, and, if that is not possible, to copy official e-mails sent on personal accounts to their government account. The new rules also establish procedures for having council employees search their personal accounts in response to records requests that make a “reasonable showing” that the e-mails in question can be found there.

The settlement filing further makes it clear that the council will ask members or staff to search their non-government accounts in response to public records requests for e-mails sent before March 1, “if there is a reasonable basis to believe that some or all of the reasonably described records … are to be found in a non-governmental email account.”

James A. McLaughlin, a co-chairman of the coalition’s legal committee and associate counsel for The Washington Post, said the group is “pleased that the council acted quickly to address our concerns.” (McLaughlin represents the Post’s interests on the board, but the Post has no formal role with the organization.)

“We think this resolution is a victory for transparency,” McLaughlin said.

D.C. Council Chairman Phil Mendelson (D) earlier this month expressed reservations over whether the new rules would be sufficient — in particular, whether they need to include specific sanctions for those who break them. Mendelson said he still had reservations but hailed the agreement as “proof that we’ve made progress in being more responsive to FOIA requests.”

“It’s still not perfect, but it says we’re on the right track,” he said.

McLaughlin said the coalition is “comfortable where we ended up,” with assurances that the council will ask staff to search their personal accounts. “We trust them to adhere to that in practice,” he said. “They’ve said it in a court pleading.”

Mike DeBonis covers local politics and government for The Washington Post. He also writes a blog and a political analysis column that runs on Fridays.
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Mike DeBonis · January 23, 2013