In a filing earlier today, Payne attorney Donald Temple includes some snapshots from that deposition and others, including admissions from Gandhi and his chief of staff that they often corresponded about official business on personal e-mail accounts. The chief of staff, Angell Jacobs, said this was done to make them “non-FOIA-able” — that is, not subject to the city’s Freedom of Information Act.
”This stream of previously undisclosed communication has been ongoing for several years,” reads the filing, which indicated that Gandhi said he used the private account to communicate with “elected officials, other executive staff members, and persons with interests in [the lottery contract]” — including Lorraine Green, a close Gray friend who became part of a group that later bid on the lottery contract.
The context of Tuesday’s court filing is an ongoing fight between Temple and the city over the production of records and whether Mayor Vincent C. Gray and D.C. Council members Jack Evans (D-Ward 2) and Jim Graham (D-Ward 1) will give depositions of their own.
Temple has asked a judge to order the city to preserve any e-mails on the private accounts as part of his discovery requests.
In today’s filing, Temple also alleged that Gandhi contradicted a Nov. 14 sworn statement by Gray that he had did “not recall having a private meeting with [Gandhi] on the lottery contract.” The filing says that in his deposition, Gandhi “testified under oath that said private meeting did in fact occur” after a larger May 2008 meeting that Gray does admit attending. Temple argues that Gray has to testify in order to reconcile the differing accounts.
What does this all add up to? It’s disturbing that a public official might do business on a “non-FOIA-able” e-mail account, for sure, but there’s nothing truly earth-shattering — yet. Between the depositions of Gandhi and aides, the government and personal e-mails, and the potential depositions of Gray and Council members, the public might get a fuller account of the lottery contract drama than any of its key players ever expected.
UPDATE, 8 A.M.: A spokesman for D.C. Attorney General Irvin B. Nathan said he had no comment on the Payne litigation but gave the following statement regarding use of personal e-mail accounts for public business:
[I]f we know of such use of a personal email accounts for official business, we will search that account — while taking steps to avoid unwarranted privacy invasions — and we will make available under FOIA pertinent emails to the extent they are not protected by FOIA exemptions. We will also make such e-mails available in response to appropriate discovery requests in litigation, subject to legal privileges. More fundamentally, we strongly discourage use of personal email accounts for official business, but at the same time the District needs to make such a policy clear and in writing. In consultation with the Mayor’s office, the OAG is working on a formal draft policy to do so and will submit it to the Mayor for his review when it is completed.