DC Circuit Court Tells District Officials They Can No Longer Hide From FOIA Requests By Using Personal Email Accounts

from the seriously,-stop-being-assholes-about-this dept

Wed, Jul 30th 2014 3:39am — Tim Cushing

With the FOIA process increasingly being routed through courtrooms, it's refreshing to see a court stand up and tell public officials to stop trying to find ways to be less transparent. The DC circuit court recently issued a ruling that shuts down a potential opacity loophole for public officials: the use of personal email accounts.

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 district's attorneys tried to argue that the neighborhood advisory commission's emails (at least those routed in and out of Commissioner Dianne Barnes' personal account) were exempt from FOIA requests because the account used wasn't a district-owned account, but the judge wasn't buying it.

"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."

Public officials (like former New York City mayor Mike Bloomberg) have tried to keep certain communications out of the hands of the public by using personal devices and email accounts. To a certain extent, this has worked. But many states have established policies in order to close this loophole, basically stating that it doesn't matter where the communication originates but what the subject matter is.

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.

Which is as it should be. The Freedom of Information law was created to help the public hold their representatives and public servants accountable, as well as to provide insight to the how and why of government activity. Routing around this by using personal devices cuts the public out of the loop. A government that often argues "nothing to hide" means "nothing to fear" certainly seems to be doing a lot of hiding, leading directly to people questioning what exactly it has to fear. Considering these are people in seats of power, these deliberate attempts to hide public communications is, at the very least, misconduct, if not actual cowardice.

Judge Nash's earlier verbal order for the district to turn over the requested emails was ignored. Now, it's in writing. Without a doubt, the district will challenge this ruling before it hands over anything, forcing a member of the public to spend even more money and time suing the government into compliance with its own statutes and laws.

234984443 McMillan Vining v DC Final Order 2014 (PDF)234984443 McMillan Vining v DC Final Order 2014 (Text)

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Filed Under: emails, foia, freedom of information, government officials, personal email accounts, stewart nash, transparency

15 Comments

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That One Guy (profile), 30 Jul 2014 @ 3:47am

Without a doubt, the district will challenge this ruling before it hands over anything, forcing a member of the public to spend even more money and time suing the government into compliance with its own statutes and laws.

Given those being sued are clearly abusing the FOIA process by intentionally attempting to hide relevant information, would it be possible for the judge to assign punitive damages(ideally personally owed, rather than the local government owing them), to help recover some of that wasted money?
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justok (profile), 30 Jul 2014 @ 3:53am

Wouldn't using personal email be a violation of security in the first place?
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Anon, 30 Jul 2014 @ 4:22am

Re:
My thoughts exactly!
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PaulT (profile), 30 Jul 2014 @ 4:47am

Re:
Logically, yes. In terms of law and bureaucracy? Who the hell knows?
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Sheogorath (profile), 30 Jul 2014 @ 5:39am

"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."

Booyah!
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Anonymous Coward, 30 Jul 2014 @ 6:45am

Typical Government Corruption
Any official conducting business through unofficial channels should be considered in violation of public trust and summarily dismissed.

This is the policy of the company I work for. The use of any unofficial communications for business is strictly forbidden even if everything else is above board. Even the instant messaging tool available to all employees is not to be used for discussing business. Violation of these rules is strictly enforced. If this policy is good enough for corporate America it's good enough for all levels of government.
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Anonymous Coward, 30 Jul 2014 @ 7:24am

Robert Heinlein wrote "'civil servant' is semantically equal to 'civil master'". I never completely agreed with the sentiment until the last ten years or so, when evidence piled up that our elected and appointed public servants considered themselves our monarchs. This decision strikes me as a move towards putting these overreaching autocrats back in their place as SERVANTS of the people, not their overlords.
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Crazy Canuck, 30 Jul 2014 @ 8:22am

I think this should be treated like they do with corporation accounts. If the owner is stupid enough to use the corporate bank account like a personal account, the corporate veil can be pierced and leave them personally responsible. Likewise if a public official mixes business with personal email, they should lose their expected privacy on that account and have all email on that account made publicly available. Maybe then these people would learn to keep their personal and business mail separate.
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Anonymous Coward, 30 Jul 2014 @ 8:24am

Re:
Except when you are at the top those sorts of rules don't apply to you.
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Anonymous Coward, 30 Jul 2014 @ 8:31am

Re:
"If the owner is stupid enough to use the corporate bank account like a personal account, the corporate veil can be pierced and leave them personally responsible."

You are talking about the reverse of this situation. This would be the equivalent of using the government email for personal business instead of using personal email for government business. What should happen here is if there is evidence of use of personal email for government business, the individual surrenders sole control of there personal email. This sort of problem arises in the private sector as well with people who use their personal phones to check company email. Many companies demand access to remote wipe the personal phone because it will contain company information.
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Anonymous Coward, 30 Jul 2014 @ 8:40am

Re:
They should be personally responsible for embezzlement.
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Anonymous Coward, 30 Jul 2014 @ 8:49am

You mean a public servant actually has to answer to the public? Really? Who would have thought?!
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Mason Wheeler (profile), 30 Jul 2014 @ 10:44am

Re:
Heinlein was an unapologetic fascist, and anything he said on the subject of government or politics should be taken with the same high dose of salt that a reasonable person would apply to the writings of Ayn Rand.
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Jennifer Hoelzer (profile), 30 Jul 2014 @ 10:54am

Don't Let These Idiots Defame All Public Servants
My friends who had FOIA-able federal government jobs knew -- and were always very careful -- not to send anything work related to or from their personal email accounts. They'd even set up separate work-only gmail accounts if they needed to send themselves documents to work on from home. (It's easier to work from gmail at home than remotely access your government email.) Because they knew that the second a work-related email touched their personal email account, the whole thing would become FOIA-able. I was basically put on notice that unless I wanted our long history of emails about happy hours and Lebron on the public record all work-related emails needed to be directed to their government account.

If those people really thought they were going to get away with this, they're idiots.
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Anonymous Coward, 30 Jul 2014 @ 12:26pm

Re: Don't Let These Idiots Defame All Public Servants
It has worked for the higher ups in the federal government for several years now, so why not trickle down the corruption methods.
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