James A. McLaughlin, a co-chairman of the coalition’s legal committee and associate counsel for The Washington Post, said the council’s position represents a “massive loophole” in D.C.’s public records laws. “Effectively the public has no ability to know what its public officials are doing,” he said. “FOIA could easily be circumvented in its entirely with regard to e-mail communications, which are some of the most important public records that are generated in government today.” (McLaughlin represents the Post’s interests on the board, but the Post has no formal role with the organization.)
D.C. Council Chairman Phil Mendelson (D) said Tuesday he disagreed with the coalition’s legal claims, but agreed changes are needed. “I don’t believe [the lawsuit] will prevail,” he said, “but I do think this government has got to get a more clear policy.”
The use of personal accounts to transact official business is common on the council, the coalition believes. The lawsuit notes “one Councilmember in particular is known to use a ‘gmail’ account almost exclusively for Council business. The Council has also disclosed a legal advisory opinion indicating that at least one Councilmember has used a ‘Hotmail’ account to conduct public business.”
The suit was prompted after the coalition requested all work-related e-mails sent by council members on their personal accounts during over two months earlier this year.
Nyasha Smith, the council’s secretary, denied the request on March 27, stating in a letter that those e-mails “are not among the public records of the Council of the District of Columbia.” Smith shared a January legal opinion from its chief attorney holding that FOIA does not require the council to produce e-mails that are not under its control.
The District’s public records law, General Counsel V. David Zvenyach wrote, “does not impose an obligation on an agency to create or retain records, nor does it impose an obligation to collect records. Instead, FOIA requires a public body that has possession or control of a public record to search its files for the public record, and disclose it.”
McLaughlin said the council’s position runs contrary to the law in several states and effectively guts FOIA, because members and staff could evade its requirements by doing business over personal e-mail accounts. “If you take the logic one step further, a council member could take a [paper] document home, and it would no longer be in the possession of the council,” he said. “That’s a rigid and overly formal way of looking at it.”
The coalition’s court complaint lays out some dire implications should the policy remain in place: “Councilmembers would have carte blanche to hide e-mail exchanges about official business from public disclosure under FOIA. … [E]ven a Councilmember working in a Council office or sitting at a government meeting could move official exchanges ‘off the books’ simply by opting to use a nongovernmental e-mail account on his or her computer or mobile device — a practice that, based on information and belief, is now commonplace.”
The council’s position on personal e-mails is somewhat at odds with the District’s executive branch. In July, Mayor Vincent C. Gray issued an order prohibiting government employees from using their personal e-mail accounts for public business in all but rare cases. The council has no such policy. But Zvenyach said in his memo that the Office of the Attorney General, whose policy applies to the executive branch, shares his view that the government can only be compelled to produce documents in its possession or control. Last year, a spokesman for Attorney General Irvin B. Nathan said the office would search personal accounts in response to FOIA or court discovery requests, subject to legal exceptions. Ted Gest, a spokesman for the office, declined to comment.
Mendelson expressed concern that public records laws, in the age of e-mail, had become too permissive, allowing residents to request swaths of documents that do not bear on policymaking. “There’s a legitimate question about what should be FOIA-ble,” he said. “With the evolution of technology, people are able to request what essentially amounts to chatter. … FOIA was written 40 years ago and the law is way too clumsy.”
But Mendelson said he agreed that “government business should be conducted on government accounts” and indicated the council would look at adopting a new policy, perhaps as part of rules that will be adopted for the next council period, which starts in January. “In terms of being truly meaningful, there have to be sanctions, and what are the sanctions?” he said. “I’m not going to censure a member because they forgot to hit reply and send a copy to themselves.”
The use of private e-mail accounts to do public business was thrown into the spotlight last December, when Chief Financial Officer Natwar M. Gandhi admitted in a deposition that he used his personal account “occasionally for office purposes.” His chief of staff, Angell Jacobs, said in another deposition personal accounts were used when there “may have been an issue that we wanted to discuss, but did not necessarily want it to be FOIA-able to the press.”
Update, 5:50 p.m.: Added comments from Mendelson and Gest.