If a D.C. government official conducts public business using a non-governmental email account such as Gmail or Hotmail, are these emails subject to disclosure under the D.C. Freedom of Information Act?
According to the D.C. Council, they’re not. But many other states’like New York, Alaska and Florida, as well as neighboring Maryland’have decided that the Freedom of Information Act (FOIA) applies to any email (including Gmail, Hotmail, AOL, etc.) that involves communication about the public business, regardless of whether it is a from a government account or a private account.
The Council’s position’ which makes it an outlier among public bodies across the country to address the issue’ is now being challenged in a lawsuit by the D.C. Open Government Coalition. The Coalition is made up of media outlets, nonprofit organizations (including the DC Fiscal Policy Institute), law firms and individuals.
On October 16, the Coalition sued the Council of the District of Columbia after being denied access to email correspondence in which Council members transacted public business through personal, non-governmental email accounts during a 60-day period in early 2012. When government employees do their job’working on behalf of the public and taking action in our name’we have a legal right to see what they’re up to. The Coalition’s lawsuit wants to ensure that no matter whether a Council member emails about city business from an AOL account or sends a message from a personal BlackBerry, the public gets to see it.
If the Council’s position were adopted, it would mean that government officials could easily evade FOIA by simply doing their work on a non-governmental email account. This isn’t a hypothetical scenario’press reports over the past year have indicated that some D.C. officials routinely engage in that practice.
The District’s open meetings and open records laws provide the public with a broad right of access to information about government activity (with limited exceptions). In response to the Coalition’s FOIA request, however, the Council argued that emails generated on a personal account are not within the “possession or control” of the Council, and need not be collected or produced’even while conceding that such emails are “public records” under FOIA.
In July, Mayor Vincent Gray directed D.C. employees to use their government email accounts for government business, and if business should occur on personal email, to file those messages with the D.C. Government. As a legislative body, the Council is not bound by the Mayor’s order, and it has not adopted a similar policy.
In response to the lawsuit, D.C. Council Chairman Phil Mendelson told The Washington Post that the D.C. government “has got to get a more clear policy“ on government email sent from personal accounts. He said he agrees that “government business should be conducted on government accounts,” and that the Council may look into a new policy as early as the next Council period, starting in January. The Coalition agrees, and we hope Chairman Mendelson will act with urgency on making the Council compliant with FOIA law.
The Coalition is represented by Chad Bowman of Levine Sullivan Koch & Schulz. The complaint is available on the Coalition’s website. An initial scheduling conference is set for Jan. 18, 2013, before D.C. Superior Court Judge Laura Cordero.