By Matthew L. Schafer
On Tuesday, the D.C. Open Government Coalition filed a complaint against the D.C. Council, asking a local judge to order the Council to search for government emails in Councilmembers’ personal email accounts. In its complaint, the Coalition alleged that the Council violated the District’s Freedom of Information Act by refusing to release the emails.
Under the Freedom of Information Act, it is the policy of the District that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” To fulfill this policy goal, the Act confers a right on all citizens “to inspect, and at his or her discretion, to copy any public record of a public body . . . in accordance with reasonable rules that shall be issued by a public body . . . .”
In March, the Coalition exercised that right and requested from the Council “any and all e-mails sent or received by Councilmembers by means of non-governmental e-mail accounts, during a defined, 60-day period, in the course of Councilmembers’ transaction of public business – i.e., ‘in his or her role as a public official.’”
The Coalition filed the request after the Washington Post reported that the District’s Chief Financial Officer admitted that “[t]here 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.” Similarly, his chief of staff noted that “she used her personal account to keep messages between her and [the CFO] confidential.” Both admissions were made in a separate lawsuit for wrongful termination.
The Coalition also cited another Post article in its complaint as impetus for the request. That article asserted that “the use of private e-mail is so widespread as to be essentially a shadow level of government.” It went on to explain, “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.”
In responding to the Coalition’s records request, the Council conceded that the emails sought were likely public records. It nonetheless denied the request, “because the Council does not possess or control the records in question, the Council is under no legal obligation to produce them.” Simply, the Council took the position that it must have possession of documents in order for the documents to be subject to FOIA. Because, the argument goes, only the individual Councilmembers have access to the emails in their own personal accounts, the Council does not have actual possession of the emails.
At bottom then, the Council’s position is this: If a councilmember placed a public record in her locked briefcase, the Council is under no obligation to disclose that record to the public upon request, because it does not know the code to unlock the briefcase and, therefore, is not in control of the document. (The complaint recognized a slightly different analogy.) If, however, that document sat on a shelf in the Council’s office building, the Council would presumably admit that it must disclose the document.
In an attempt to avoid a lawsuit, the Coalition sent a letter to the Council in August urging it to reconsider its position. In the letter, the Coalition argued, “It . . . defies common sense to suggest that the Council has no control over, or actual or constructive possession of, records that are literally at the fingertips of its members, retrievable with the kind of modest cooperation that a public body may reasonably expect of its employees when conducting a diligent search for records responsive to a FOIA request.” Despite the Coalition’s concerns, the Council still refused to release the emails sought.
Maybe unsurprisingly, the Council is not the first government body to take the stance that emails contained within government officials’ personal email accounts are not subject to FOIA even if they regard public business.
Most famously, Sarah Palin’s administrative director from the time she was governor of Alaska declied to produce emails Palin sent from her Yahoo! email account, even though they concerned official business.
“We are unable to access records from the nonstate email accounts as we are not the account owner or customer of the providers,” the administrative director told reporters.
(A hacker later broke into Palin’s Yahoo! account and released several pages of the Governor’s emails.)
Just last week, the Supreme Court of Alaska finally resolved the question of whether the Palin emails should have been disclosed to records requesters. It concluded, “In fact the State had to gather all obtainable emails from Governor Palin’s . . . private email accounts relating to the transaction of state business.”
Luckily, most states agree with the position taken by the Supreme Court of Alaska. For example, last year, Illinois Attorney General Lisa Madigan released an opinion explaining that public bodies subject to FOIA must disclose emails concerning public business even if sent from personal email accounts.
“Whether information is a ‘public record’ [and therefore discoverable under FOIA] is not determined by where, how, or on what device that record was created; rather the question is whether that record was prepared by or used by one or more members of a public body in conducting the affairs of the government,” Madigan wrote.
Madigan’s stance is consistent with an old, oft-cited case out of Iowa where the state supreme court held, “It is the nature and purpose of the document, not the place where it is kept, which determines its status [as a public record].”
Several other states (see, for example, Texas) have taken the same stance as Madigan and the Iowa Supreme Court, as has the executive branch of the District. Indeed, months after the Coalition made its request of the Council, District Mayor Vincent Gray issued an order to executive branch agencies to establish a “District-wide policy . . . concerning the use of private email accounts to transact public business” and “[e]nsure that all emails sent or received by District employees in which those employees are transacting public business . . . [are] available to Freedom of information Act requests.”
As part of that order, which does not extend to the Council as a legislative body, the Mayor instructed, “District employees [were] strongly discouraged from using private email accounts to transact public business and should do so only in rare instances.”
It is, of course, unclear how this case will turn out. While it appears that the D.C. Open Government Coalition has the law on its side, nothing is ever certain in the judicial system. If nothing else though, the ramifications of a ruling in favor of the Council would call into question the effectiveness of so many freedom of information acts around the country.