Today’s scandal-du-jour (yes, that is somewhat redundant) involves government officials using private email accounts to conduct public business. They must be doing it to avoid FOIA! They are terrible people! This must be stopped!
It is true that there is a problem with using personal email on work business. But it’s not because that makes the email un-FOIA-able. It’s that it highlights the fact that the law hasn’t caught up to technology. Or that because of technology the law is forgotten. Or something like that. Let me elaborate.
First a disclosure: I have been known to send work-related emails from my personal account. Almost exclusively, however, they are along the lines of “I’m running late but on my way!” and “red line troubles this morning, I’ll be there when I get there.”
Now. Why would someone send work-related email from their personal account, if not to evade the reach of FOIA? (Which it doesn’t. I’ll get there, I promise, in my characteristically rambly fashion.)
Plain and simple, it’s more convenient. I leave my gmail open on my home computer all the time. All. The. Time. I have a gmail app on my smartphone. And on my kindle. Tap the envelope, I’m in my account and I can send an email. Want to log in to my work account, since I’m not important enough (and thank goodness for this) to warrant a government-issued smartphone? I’ve got to go to the website, enter my login, complete with an honest-and-true backslash, which I don’t even know where to find on my smartphone’s keyboard (but which isn’t a problem on my computer), and then my password which because of OCTO’s guidelines has to have crazy symbols and such. (Again, not a problem on the computer, but a super-big pain on a touchscreen.) I actually tried this once on my phone and wasn’t able to get past the login screen. But that’s not enough. If I leave the window open too long, it times out.
None of this is insurmountable, but if I’m on the train or out somewhere and I have a work-related idea, I’m not going to go to the trouble of logging in to my work account. I’m going to tap on the gmail envelope and send my email that way.
Another reason I might use my personal email for work? Say I were the Mayor, God-forbid. I’m going to get a shit-ton of email. Excuse my language. How am I to know what’s really important? Sure, I have my assistant filtering my mail for me, but what about things that require instant response? I create a gmail account “mayor.god@gmail” and give that to my senior staff, to my cabinet, to the Council Chair. (Mayor Fenty had a dc.gov email address that was intended to serve this purpose; I don’t know if Mayor Gray does.) I need this in order to weed out the emails that really should be handled by someone else. It’s a personal account, yes, but created for the sole purpose of conducting government business. I’d better not be using it to evade FOIA.
Suppose, however, that I do intend my use of my personal account as a way of evading FOIA. Here’s why it won’t work on a purely logistical level: people are stupid. Or more ethical. Either way, a work email address is going to find its way into the recipient list and the whole email chain will then be captured by an automated search pursuant to FOIA.
And now we get to why none of that matters, because personal email is subject to FOIA anyway.
People think that it isn’t. Why? Because if I, as a FOIA officer, get a request for someone’s emails containing the words “evade” or “FOIA” between the beginning of time and now, my first response is going to be to fill out a form on OCTO’s internal website with the search parameters, and OCTO will run a search. Bam, done. (Actually it takes a while, but meeting deadlines for FOIA is a subject for another day.) The problem is that we have been accustomed to all FOIA requests being for email (who writes memos anymore? Besides my boss, that is) and the search for responsive documents therefore being automated and not requiring effort by the person whose documents are being sought. (FOIA officer? Lots of work. Have to go through the CD of 9436 emails, 6117 of which are duplicates, to identify the emails that are privileged for one reason or another.)
This isn’t how it used to be. It used to be (not that I was ever a FOIA officer in olden days) that the FOIA officer would get a request, and he or she would have to take it to the relevant people and say “hey, I need your telephone notes from that phone call you had with the Mayor about evading FOIA, the memo that your intern wrote you about it, and the resulting report.” And that person would be responsible for looking in the file cabinet (remember those?) and digging out the documents and giving the FOIA officer a copy of them. Nowadays no one needs to go digging in files because that memo? Sent as an attachment to an email.
We’ve become complacent and reliant on technology to do our work for us. If we’re not including personal email in our FOIA searches, it isn’t because they aren’t subject to FOIA but because we’re not asking our officials to search their email.
D.C. Code § 2-531 says (my emphasis):
The public policy of the District of Columbia is 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 that end, provisions of this subchapter shall be construed with the view toward expansion of public access and the minimization of costs and time delays to persons requesting information.
A policy statement isn’t terribly binding and enforceable, though, so let’s look further.
D.C. Code § 2-532 is the meat of DC’s FOIA. (I’d say “FOIA act,” to make people happy, but that would be like “ATM machine,” and I just won’t do it.) The relevant paragraph is (a):
(a) Any person has a right to inspect, and at his or her discretion, to copy any public record of a public body, except as otherwise expressly provided by § 2-534, in accordance with reasonable rules that shall be issued by a public body after notice and comment, concerning the time and place of access.
What’s a “public record”? It is (D.C. Code § 2-502):
(18) The term “public record” includes all books, papers, maps, photographs, cards, tapes, recordings, vote data (including ballot-definition material, raw data, and ballot images), or other documentary materials, regardless of physical form or characteristics prepared, owned, used in the possession of, or retained by a public body. Public records include information stored in an electronic format.
(18A) The term “public body” means the Mayor, an agency, or the Council of the District of Columbia.
Personal email prepared by the Mayor? Sounds like a public record to me. Personal email prepared by an agency director? Less clear, true, but remember that we’re supposed to be construing this with a view to expanding access.
Is there a rule somewhere that says “personal email about work issues is subject to FOIA?” No. And there isn’t a rule that says “you may not use your personal email for work issues” either. But that doesn’t mean that we need one. It means that the training to FOIA officers should include a directive to ask request subjects to search their personal email or provide written assurance that they do not use their personal email for work matters. (The latter being a CYA for the FOIA officer.)