If DHS Boss Has A Staffer Write Her Emails... Does It Count As Her Email Under A FOIA Request?

from the if-an-email-falls-in-a-forest... dept

Fri, May 16th 2014 3:35am — Mike Masnick

In 2012, we pointed out how ridiculous it was that then Homeland Security boss Janet Napolitano, who self-described herself as a Luddite, admitted that she didn't use email at all. This seemed troubling, given that DHS was ostensibly in charge of cybersecurity, and you'd hope that the boss would understand the basics of email. Of course, she later admitted to the real reason why she didn't use email: it created a paper-trail that would make her too accountable.

In the wake of the recent (and absolutely ridiculous) story about DHS inspector general Charles Edwards and his litany of misdeeds, Shawn Musgrave, over at Muckrock, decided to file some FOIA requests for any emails between Edwards and Napolitano. In response, DHS gave a "no responsive records" answer, noting that (as many had reported), Napolitano didn't use email.

However, as Musgrave points out, that's not actually true. There are multiple examples of emails "sent" by Napolitano that have been previously released -- it's just that it's clear they were actually sent via a DHS staffer, rather than Napolitano herself. This is known because of another FOIA request from Musgrave, concerning any emails about Napolitano's resignation from DHS, which turned up (ta da!) an email sent by a (redacted) staffer on behalf of Napolitano:

And, it turns out that this is not the only example of an email "from" Napolitano. Others have been discovered as well. So, that raises a serious question: when filing a FOIA request with DHS for Napolitano emails, shouldn't the emails that were sent using her "signature" count, even if sent by a staffer? As Musgrave notes:

There are two critical issues at play here. First is the guesswork this kind of email-by-proxy requires. Since emails like these didn't originate from an account assigned to Ms. Napolitano, watchdogs would have to skim through an indeterminate number of inboxes to ferret out misconduct by the Secretary.

But the spirit of the Freedom of Information Act and transparency also requires government officials to conduct a good faith search for documents responsive to a particular request. Since Napolitano's email aversion is common knowledge, particularly within DHS staff, a good faith search for emails "from" the Secretary requires more effort than reiterating that Napolitano declined to set up an email account during her tenure.

I have appealed the adequacy of DHS FOIA staff's search to that effect, and intend to continue pressing for release of documents that outline the extent of improper contact between Edwards and senior DHS officials.

Allowing this kind of thing to happen without pushback will present an easy blueprint for other government officials to avoid having their own emails easily FOIA'd, and that would be a big problem.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: charles edwards, dhs, foia, homeland security, janet napolitano

13 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

That One Guy (profile), 16 May 2014 @ 2:10am

Just use the DOJ's argument
Don't ask for emails to and from her, ask for all emails sent from her agency and the agency that receives them that are about her, or contain mention of her.

After all, if that kind of reasoning is good enough for the DOJ, I'm sure they've have no trouble at all having it applied to the DHS. /s
[ link to this | view in thread ]
Anonymous Coward, 16 May 2014 @ 4:09am

Re: Just use the DOJ's argument
I'd go further, and ask for five degrees of relevance.
[ link to this | view in thread ]
Berenerd (profile), 16 May 2014 @ 4:28am

She doesn't want a paper trail?
Umm...being in a leadership role in a governmental branch, you should have a paper trail to make sure you are operating legally and within you boundaries of authority. I guess she doesn't want people to see what she was really doing.
[ link to this | view in thread ]
zip, 16 May 2014 @ 4:33am

Kind of like ...
Kind of like in the old days of mechanical typewriters, when a boss would get his personal secretary to type all his letters for him.

This sort of setup not only creates an "air gap" -- it also provides a scapegoat to blame whenever something goes wrong.

Though these days the trend seems to be for agency bureaucrats -- like EPA boss Lisa Jackson -- to create fake aliases to send email from.

http://www.judicialwatch.org/blog/2012/12/epa-under-investigation-for-using-fake-emails-to-hide -info/
[ link to this | view in thread ]
Ninja (profile), 16 May 2014 @ 6:41am

Re: She doesn't want a paper trail?
Or even better, to have your achievements in the agency registered and documented. Unless, of course, you are doing something not so... right?
[ link to this | view in thread ]
Anonymous Coward, 16 May 2014 @ 7:07am

Wait!!!
3rd party rule right?

Tell me I am wrong!
[ link to this | view in thread ]
Michael, 16 May 2014 @ 7:21am

This is a hoax
It's impossible.

Janet Napolitano does not have any friends.
[ link to this | view in thread ]
Quiet Lurcker, 16 May 2014 @ 7:29am

History Repeating Itself
After hearing a bout Ms. Napolitano's aversion to e-mail, some of the reportage regarding wait times at the VA, and the Internal Revenue System asking...indelicate questions of presumably conservative political groups, I keep hearing a name, in the back of my head.

Watergate.

Someone, anyone, please tell me I'm imagining things.
[ link to this | view in thread ]
Anonymous Coward, 16 May 2014 @ 7:58am

Re: History Repeating Itself
You are imagining things, please kick back and relax, we will be increasing your dosage shortly!
[ link to this | view in thread ]
madasahatter (profile), 16 May 2014 @ 9:12am

Shyster move
This sounds like a typical shyster move; the staffer does the actual email thus it did not come from the boss. If a competent judge ruled on this I believe the ruling would be the staffer's actions were effectively the boss' actions.
[ link to this | view in thread ]
Coyne Tibbets (profile), 16 May 2014 @ 10:29am

Agency
No, actually it is easy. The FOIA request needs to ask for any emails sent by Napolitano or by any person acting as her agent in the sending of emails.

If the secretary sends email on Napolitano's behalf, then the secretary is her agent. So a request of that nature would require any secretary's messages to be produced as well.
[ link to this | view in thread ]
Quiet Lurcker, 16 May 2014 @ 12:22pm

Re: Re: History Repeating Itself
Then, in your estimation, the actions of the current political crowd - up to and including the president - are not eerily similar to those of Mr. Nixon and his aides leading up to Watergate and its aftermath?
[ link to this | view in thread ]
Anik Singal Profit Academy, 28 Feb 2015 @ 4:36am

Re
Actually this is what kem said, i know This points were worth.. but most case we need to recheck.
[ link to this | view in thread ]