December 6, 2011

FROM A TUESDAY court filing, we learn that D.C. officials are using personal e-mail accounts to conduct official business in an apparent attempt to shield their actions from view.

A deputy to Chief Financial Officer Natwar M. Gandhi described the practice last week. “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,” Angell Jacobs, Mr. Gandhi’s chief of staff, testified Nov. 29. “FOIA” is the Freedom of Information Act.

Her testimony came in a deposition in a federal lawsuit brought by former procurement officer Eric W. Payne, who says he was fired for resisting political pressure in handling the city’s lottery business. In testimony in the case last week, Mr. Gandhi confirmed he sent and received government information and correspondence via a private e-mail account but said it happened occasionally. Among those whom he acknowledged sending such e-mails were D.C. Council members, former mayor Adrian M. Fenty, Mayor Vincent C. Gray (D) and Lorraine Green, a Gray adviser.

Mr. Gandhi said he would use his personal e-mail account because he would start work at home as early as 4:30 a.m., and it was difficult to access his government account. Shown an e-mail sent from his private account at 10:39 a.m. on a Friday, Mr. Gandhi said it appeared to be a continuation of an exchange started in his personal e-mail and that both accounts, government and personal, remained open throughout the day so that he would not overlook anything.

A spokesman for Mr. Gandhi’s office told us that neither Mr. Gandhi nor Ms. Jacobs would speak with us. The spokesman said the office has no policy or practice of using personal e-mail to avoid scrutiny. He said Ms. Jacobs was referring to one incident, which he would not disclose, that occurred years ago. He said e-mails from Mr. Gandhi’s personal account went to government accounts of staff and hence were open to public view.

Observers and insiders of D.C. government say the use of private e-mail is so widespread as to be essentially a shadow level of government. Some council staff and members admit to the practice, though they say their reasons have more to do with convenience than an effort to be secretive.

Further questions about D.C. officials’ use of personal e-mail accounts are raised in the effort of an attorney seeking documents under the Freedom of Information Act about the handling of his client’s contract. Randy Alan Weiss, attorney for a Baltimore landscaping firm that was passed over in favor of a more expensive but politically connected firm, detailed to the council what he sees as gaps in correspondence involving D.C. Council member Harry Thomas Jr. (D-Ward 5), who opposed awarding the business to Lorenz Inc. The lawyer has requested a screening for pertinent documents in a private account of Mr. Thomas that was referred to in a trail of relevant e-mails. His request was denied by the secretary to the council, who wrote,“It is our position that private emails are not records of the Council.” That denial is under review by the council’s general counsel. Mr. Thomas refused comment.

It seems to us that, if a city official is conducting government business on a private e-mail account, those e-mails are public records. “Public record” is defined in the D.C. FOIA and other laws by function, not by where it physically or electronically resides.

Fortunately, D.C. Attorney General Irvin B. Nathan agrees that government business conducted on personal accounts is public and says that clarification is needed. “We strongly discourage use of personal e-mail accounts for official business,” he told us, “but at the same time the District needs to make such a policy clear and in writing.”