“There may have been an issue that we wanted to discuss, but did not necessarily want it to be FOIA-able to the press and, so, we would have perhaps had a conversation on personal e-mail,” Jacobs said.
“FOIA” refers to the city’s Freedom of Information Act, under which documents, including e-mails, are subject to public disclosure upon request. Messages sent to or from non-government accounts are subject to the law but are more complicated to search.
Details from the depositions emerged this week in federal court filings in a wrongful termination lawsuit filed by Eric W. Payne, Gandhi’s former contracting chief. Payne says he was illegally dismissed after refusing to bow to political pressures surrounding the 2008 award of the lucrative city lottery contract. His attorney, Donald Temple, is fighting the city over the production of records and whether Mayor Vincent C. Gray (D) and D.C. Council members Jack Evans (D-Ward 2) and Jim Graham (D-Ward 1) will give depositions in the case.
Gandhi, in his Nov. 30 deposition, explained that he used his personal e-mail account when working from home to message staff and elected officials, including the mayor and council members. “I start my workday very early in the morning,” he said, explaining he has “difficulty” accessing his government e-mail account.
Temple presented him with e-mails he had sent from the personal account during the workday. Gandhi said those were replies to e-mails sent early in the morning.
Ayanna Smith, a spokesman for the city technology department, said all D.C. government employees have access to their work accounts outside of the office via Web mail.
Gandhi said he had not searched his personal account in response to Payne’s requests, but a city attorney said at the deposition a search would be done.
A spokesman for D.C. Attorney General Irvin B. Nathan said he had no comment on Payne’s litigation but said the office would search personal accounts in response to FOIA or court discovery requests, subject to legal exceptions.
“More fundamentally, we strongly discourage use of personal e-mail accounts for official business,” said the spokesman, Ariel Waldman-Levinson.
After The Washington Post published a blog post and editorial on the court filings, Gray (D) was questioned aggressively on the matter at a Wednesday news conference, where he said he does not support members of his administration using private e-mail accounts for government purposes.
Gray said he keeps a private e-mail account, “but it’s for my private business,” he said. “I don’t use it to conduct public business.”
A review of e-mails obtained this year under a Post FOIA request shows that Gray sent work messages to his aides on at least two occasions using a personal account. His predecessor, Adrian M. Fenty (D), regularly used a personal account for official purposes, according to other records requests.
Mayoral spokesman Pedro Ribeiro said Gray’s “point was very clear — he is not actively using his private e-mail account to avoid FOIA.”
The use of personal e-mails extends to the D.C. Council. Graham regularly e-mails from an account not hosted on a D.C. government system. While his colleagues have personal accounts, Graham is the only member who publicizes his personal account as his primary address.
“I’ve had this account virtually since my first day as a council member,” Graham said Wednesday. “Never in [my] mind have I tried to shield anything. It is the standard account.”
D.C. Council Chairman Kwame R. Brown (D) has directed lawyers to review council policies regarding the use of personal e-mail accounts for official business, said his spokeswoman, Karen Sibert.