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City officials who conduct public business on personal email accounts must turn their personal emails over in response to a Freedom of Information Act request, according to a recent, first-of-its-kind ruling in D.C. Superior Court.
The July 9 order by Judge Stewart Nash brings the District into line with the majority of states that have addressed the issue, signaling an emerging trend in favor of government transparency—if not an end to efforts to work around disclosure laws.
The case grew out of an effort by Ward 5 residents concerned about the proposed development of the McMillan Sand Filtration site to learn more about the activities of an Advisory Neighborhood Commission member who strongly supports the project.
The D.C. Office of the Attorney General argued unsuccessfully that personal emails from the private account of ANC 5E Commissioner Dianne Barnes fall outside the D.C. FOIA statute, and therefore no search of her account for relevant documents is required by the statute.
Bloomingdale activist Kirby Vining, a member of a group called Friends of McMillan Park, brought the challenge, he says, because his group feels shut out of the decision making process over the McMillan project. “I found that the city is not very open about releasing information, even with a FOIA request,” Vining says. “I would have thought that the substance of Judge Nash’s decision was already part of the D.C. rules and regulations about the use of email, but either it is not or it’s not enforced. Either way, I hope this ruling improves the transparency of our government.”
The Attorney General’s office wouldn’t comment, citing the ongoing litigation. Barnes didn’t respond to an email seeking comment.
Open-government experts say the tech revolution has prompted public officials to use smart phones and personal email accounts to communicate about public business. Although there generally are no rules prohibiting the practice, officials across a wide spectrum have claimed that emails and text messages they send from private devices aren’t subject to open-records laws because they, not the government, own the devices and accounts.
As that view has been challenged, states have increasingly found that the content, not the ownership of the device or account, is the determining factor of whether a communication about public business is subject to FOIA disclosure laws, according to the peer-reviewed journal Communication Law and Policy.
In Maryland, the Attorney General opined back in 1996 that “an email discussing public matters via private email is a public record,” according to a database of state laws on the Reporters’ Committee for Freedom of the Press website. The Virginia Circuit Court determined in 2008 that “the subject matter determines whether the email qualifies as a public record, regardless of whether it is on a public or private email account.”
Sunshine laws in states such as Missouri require that public officials who communicate about public business via any means other than a government computer or device “concurrently transmit the message either to the member’s public office computer or to the custodian of records in the same format, becoming a public record,” the RCFP website states.
In November, Vining made a FOIA request for Barnes to disclose emails related to the McMillan project, the court order states. Barnes denied the request, claiming she had already provided all responsive documents contained in her ANC email account. Vining then filed a lawsuit requesting all of Barnes’ communications from all of her email accounts.
In response to the lawsuit, the District searched Barnes’ electronic and hard copy records but limited the search to emails stored in an account maintained by the District’s Office of the Chief Technology Officer, according to the court order.
Arguing for Barnes, the D.C. Attorney General urged the court to apply federal law—not D.C. law—to find that “e-mails of a government employee, maintained on a non-governmental e-mail account, did not qualify as agency records subject to production under FOIA.”
The judge wasn’t buying it. “The flaw in the District’s reasoning is that, in defining what documents are subject to disclosure, the [D.C. FOIA] statute is not equivalent to the federal FOIA statute,” Nash wrote in his order. Citing a Washington Post case, he explains that federal law should be applied “except where the two acts differ,” and that whereas federal law refers to “agency records,” D.C. law refers to “public records.” Looking to D.C.’s own laws, the judge then reminds the Attorney General’s office that the term “public record” includes “information stored in an electronic format.”
The District’s lawyers pressed on, however, arguing that only emails “prepared, owned, used, in the possession of, or retained by a public body” should be subject to the FOIA, and that Barnes is an individual, not a public body.
Wrong again, according to Nash: “This argument requires the Court to ignore Ms. Barnes’s position as Commissioner of the ANC,” the judge wrote. “To the extent that Ms. Barnes is acting in her capacity as Commissioner of the ANC, then communications made or received by her would be communications of the ANC, irrespective of whether such communications were associated with her personal e-mail account.”
Having once already issued a verbal order for the District to turn over Barnes’ ANC-related emails, Judge Nash drove his point home and this time put it in writing: “The mere possibility that such e-mails might exist in Ms. Barnes’s personal account would be sufficient for this Court to [order release of the records]. It is worth observing, however, that we are not dealing in mere possibilities.”
He then references a personal email from Barnes that turned up in the case, which showed she was “indisputably transacting ANC business relative to the McMillan Sand Filtration site development.”
Neighborhood activists are upset that Vining had to wage war in Superior Court at his own expense, while Barns was backed by the city’s legal muscle. “This is symptomatic of a larger issue in the city of public access to information that should be readily available without any need for litigation,” says Mat Bader, an ally of Friends of McMillan Park.
Emily Grannis, an attorney with the RCFP, says that the point of open records laws is not to invite officials to find a “work-around.” Of the D.C. Attorney General’s defense of Barnes, she says, “Maybe they should be more concerned about advising their clients to retain public business records on public computer servers and accounts. Then the public would not have to fight in court for access to those records.”
The city’s strident defense of Barnes is somewhat at odds with positions taken in 2011 by the Attorney General’s office. The issue surfaced when documents in an employment discrimination case showed officials in the Office of the Chief Financial Officer using outside email accounts instead of governmental ones.
“There 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,” Angell Jacobs, chief of staff to former CFO Natwar Gandhi, said at the time, the Post reported.
Although not under court order, Attorney General Irv Nathan said his office would search for and disclose those personal account emails “subject to legal exceptions.” A spokesman also said that the office “strongly discourages” the practice.
Documents in the case also showed that former Mayor Adrian Fenty regularly used personal email for city business. Mayor Vince Gray denied such practices, but documents showed that he actually did so on at least two occasions, according to a Post report.
Councilman Jim Graham was unique at the time for listing his personal email as his official email address.
Until challenged, Nash’s order signals a new day in D.C., while possibly opening new avenues for reporters and citizens seeking to learn more about the inner workings of government. Read it below:
Correction: Due to a reporting error, this story originally misidentified Mat Bader. He is not a member of Friends of McMillan.