MAYOR VINCENT C. Gray’s executive order restricting the use of private e-mail to conduct government business makes clear what should have been obvious. The public’s business must be conducted in public. What’s unclear is whether the D.C. Council will follow the mayor’s commendable lead and enact similar safeguards for the legislature.
Last week Mr. Gray (D) directed members of his administration and the executive branch to use their government e-mail addresses (dc.gov) while transacting public business. In instances that the order defines as “rare,” when employees are unable to access their dc.gov addresses and end up using private accounts, they must ensure that courtesy or blind courtesy copies be sent to their government accounts to preserve public records.
The directive, effective immediately, was prompted by the disclosure last year that private e-mail accounts were being used to conduct city business. In a deposition for a lawsuit brought by fired lottery contract officer Eric W. Payne, a deputy to Chief Financial Officer Natwar M. Gandhi said that if an issue needed to be discussed without becoming subject to Freedom of Information Act (FOIA) requirements, “we would have perhaps had a conversation on personal e-mail.” D.C. Attorney General Irvin B. Nathan rightly said at the time that content, not the delivery system’s format, determines what is subject to FOIA. He acknowledged a need to clarify city policy.
The mayor cannot dictate policy to the council, so his order did not affect council members and their staff. A spokesman said that Mr. Gray “absolutely believes the council should adopt a similar policy.” That the council needs to change its policy is even more critical because the council’s general counsel, V. David Zvenyach, wrote in a Jan. 3 opinion that “the Freedom of Information Act does not require the Council to obtain and produce emails generated on a personal email account and that are not in the possession or control of the Council.”
Council Chairman Phil Mendelson (D) told us he’s in general agreement that private e-mail accounts should not be used, but that it’s something the council needs to study. We don’t think it should take long to realize that there’s a problem with a policy that allows council members to evade scrutiny in conducting public business.
When it returns from its summer recess, the council should amend its rules to prohibit use of private e-mails and follow up with legislation to imbed this important transparency in city law.