ACTIONS SPEAK louder than words, so it’s pretty telling that the D.C. Council, which professes to want transparency in government, has to be dragged into court over a specious policy that allows public business conducted on personal e-mail accounts to be shielded from disclosure. When will the council realize that only by opening up government can it show it has nothing to hide?
The D.C. Open Government Coalition filed a lawsuit in D.C. Superior Court this month that challenges the council’s position that it doesn’t have to disclose e-mails sent to or received by council members through their personal, nongovernmental e-mail accounts, even if the correspondence involves official government business. The suit follows the council’s denial of a Freedom of Information Act (FOIA) request this year by the coalition on the grounds that the council does not have active control or access to those accounts.
Such reasoning, as coalition board member James A. McLaughlin pointed out, represents “a massive loophole in the District’s public-records law. Officials could nullify FOIA by simply doing their work over personal e-mail accounts.” Mr. McLaughlin is The Post’s associate counsel, but the newspaper has no official or financial role in the coalition, which is partly headed by former Ward 3 council member Kathy Patterson. The coalition took up the issue after D.C. Chief Financial Officer Natwar M. Gandhi said last year that he occasionally used his personal account for official purposes and his chief of staff acknowledged it was sometimes done when there “may have been an issue we wanted to discuss, but did not necessarily want it to be FOIA-able to the press.” Mr. Gandhi is by no means alone in what’s been seen as a widespread practice.
Most jurisdictions that have dealt with this issue — including Maryland, New York, Pennsylvania and Florida — have concluded that public records are determined by their content and substance and not by what e-mail device was used. That’s also been the position of D.C. Attorney General Irvin B. Nathan; Mayor Vincent C. Gray (D) took the extra — and commendable — step of issuing an executive order in July that generally prohibits those in the executive branch from conducting official business through personal e-mail.
The council has failed to follow suit, with its general counsel staking out a different legal view about what’s subject to FOIA. D.C. Council Chairman Phil Mendelson (D) told The Post’s Mike DeBonis that he agrees government business should be conducted on official accounts and that the council would look at adopting a new policy, perhaps as part of rules for the next council period in January. That there seems to be so little urgency in addressing this problem is troubling and, we hope, will soon be rectified by the court.