The Aug. 15 news article “Energy program staff was told not to use personal e-mail” reported that Jonathan Silver, formerly of the Energy Department, warned his colleagues not to use personal e-mail addresses in work correspondence, because those e-mails could be subpoenaed. For organizations like mine, a government accountability group, the question remains — for the media and members of the public who seek transparency from their government — are government employees’ e-mails, when sent at work from personal accounts, subject to the Freedom of Information Act (FOIA)?
If federal employees’ work-related e-mails can be “records” for purposes of the Federal Records Act, then it follows that those communications can be agency records subject to FOIA. But Congress has not yet made this issue clear. Unless Congress legislatively clarifies whether FOIA applies to private e-mail accounts and personal communications devices, a federal court will be compelled to determine the matter. Until then, we can expect politics as usual.