Loose Lips

District Officials Can’t Shield Personal Email From FOIA, Judge Rules

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:

McMillan Vining v DC Final Order 2014

Correction: Due to a reporting error, this story originally misidentified Mat Bader. He is not a member of Friends of McMillan.

Photo by AgnosticPreachersKid/CC BY-SA 3.0 via Wikimedia Commons

  • Corky

    DC's FOIA law is too open and that's why this absurd result was reached. Public officials and regular government employees are entitled to privacy too and should not have to worry about some neighborhood nag going through his or her Yahoo account. The only outcome of this ruling will be that discussions and decisions will be made verbally to avoid disclosure by FOIA. Why do you think these government workers and officials were using their private accounts in the first place? It was to avoid FOIA!! Now, they just won't write anything down.

  • S.E.

    "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 is not a State...............but I'm sure the Judge KNOWS that.

  • tax payer

    This is a very good ruling considering this case. This particular Commissioner uses her private email account for almost all of her ANC work; There are hundreds or thousands of email examples. She is also known around her neighborhood for working against Commission rules and ethics, preferring to represent developers and her own personal opinions rather than the community she is elected to represent. BUT, people can't depend on the courts or city officials or the media to hold her accountable for misdeeds--especially if the officials share her wishes. Her community must hold her accountable and vote someone respectable into that Commission seat asap. If you don't know what an ANC Commissioner is, you best find out and VOTE-- If a Commissioner like this gets into a seat and the community doesn't pay attention, that Commissioner can have a HUGE negative affect on your quality of life. I suggest talking with the local Civic Association(s) if you want some input on your Commissioner.

    I've followed the McMillan issue closely and realize--no matter what should or shouldn't be destroyed at the historic McMillan Park landmark, one must acknowledge that this is an obvious case where the developer & City officials have a shared vested interest in maximizing profits from this no-bid development--Media has been fairly silent when it comes to helping the community--SO, the only remaining representation that community has comes down to their ANC Commissioner. It is very sad to see this Commissioner ignore her people.

  • http://dcjack.org Jack McKay

    Speaking as an ANC commissioner -- yes, this is the right outcome. We shouldn't be able to invoke secrecy by using our personal e-mail accounts.

    Our ANC (1-D) uses a Google group for e-mail discussions of ANC matters. That group is open to public view, so any member of the public can "eavesdrop" on our discussions. Yes, sometimes commissioners will resort to private e-mail accounts to evade that public view. And sometimes it's constituents who don't want their communications with the ANC made public.

    Clearly a FOIA request will counter that evasion. The public's right to know supersedes a commissioner's desire for confidentiality. That's life in the public arena. We should have no secrets, not from the public we're supposed to be serving.

  • Fearing Dysphoria

    More evidence that it is unlawful for ANC members to undertake official business in secret and expensive for the taxpayers when commissioners dig their feet in to hide their activities, this from the Brookland yahoo group yesterday:

    Dear Community --

    Followup information re the FOIA lawsuit case (Conor Crimmins v. District of Columbia ), involving ANC 5B, our ANC 5B rec'd update information today that the District has decided to settle the Crimmins case for $57,000, plus the $1,400.00 sanctions awarded against ANC 5B by Judge O’Keefe, for a total of $58,400.

    ANC 5B was notified that this settlement will be paid out of the Settlement and Judgments Fund and that, in exchange, each party would withdraw its appeal. ANC 5B was also told that OAG and OSG are in agreement regarding settling this case.

    Very kind regards,

    Commissioner Carolyn C. Steptoe
    Single Member District 5B04

    Ms Steptoe openly made an audio recording of a single member district (SMD) meeting she had convened but refused to share that recording -- which documented unfortunate behavior on her part -- with her constituents.

  • DCCommish

    Taxpayer: Wrong this is not a case where there was no bid and the more you say it doesn't make it true! Again your interests in this project and making these false staements of a no bid contract is outrageous. Wake up and see what is really happening! the special interest groups fighting this development are short sight and frankly ignorant to the wants and needs of DC residents. As for Commissioner Barnes, she has been a great ANC Commissioner for years in Bloomingdale, vote in over and over by DC residents. She has held many positions in the community for over 20 years, so your theories are all wet!

  • CapHillResident

    DC officalsdeserve thisruling.

    DC officials have avoided FOIA for years by doing all their communications via personal e-mail accounts, often free g-mail accounts. Allen Lew's top staffers are known for this.

    When you regularly conduct official government business on a g-mail account in order to avoid legally required transparency, you deserve to have your personal e-mail subject to some kind of review.

  • Gordon

    FOIA should go both ways. The person or entity whose requesting the info should be required to counter with their emails as well.

  • Stacy Cloyd

    I am also an ANC commissioner (6D02) and I fully support this ruling and everything in Jack McKay's comment. As a DC taxpayer, I am frankly annoyed that the District spent money defending the ANCs on this. DC provides email addresses for all the commissioners and while it was a bit of a pain to set mine up, it allows me to separate my personal business and opinions from ANC matters. When people email my personal address about an ANC issue (which happens--I knew people in the community before I was on the ANC, and they had my email address) I just forward them to my ANC account and answer from there. It's not exactly a hardship.

    If Commissioners don't want their private email addresses FOIA'd, they shouldn't conduct ANC business on them. And to "DC Commish," if there wasn't anything untoward about the deal (and I don't know anything about McMillian) then there shouldn't be any trouble releasing emails about it. ANCs get DC taxpayer money and represent DC residents, so their work should be transparent.

  • Andrea Rosen

    " . . . 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."

    One might reasonably inquire then why public servants conduct public business on private devices and accounts, if not to evade public scrutiny.

    Just another example of how unprogressive is the D.C. government--both executive and legislative branches--despite the "Democrat" label they all love to plaster on themselves. Attorney Generals present and future: Look to your peer just across Western Avenue if you want to learn what good government looks like.

  • DCCommish

    Stacy Cloud... I don't think it was a question of releasing the emails. It was more of a question around personal emails. I beleive Ms. Barnes made a good faith attempt to comply with the FIOA and that DC AG didn't want to go further with it into personal emails. My comments were around Ms. Barnes and what these Wacko Jacko's in bloomingdale have been attempting to do all along. they are complete loons when it comes to this project. I have know Ms. Barnes for years and she surely isn't hiding anything. It's these FOM group who are the shadest people in town! they are the ones who will do everything and anything to lie steal and cheat to stop McMillan. They are just trying to get media attention and to get false information out into the public domain to sway public opnion to thier special interests.

  • Ed Hodge

    I am a very pro business, pro development person. As such I am in favor of development at McMillian. However, I am not in favor of the current proposed development plan for the site because the plan doesnt leave enough green space and offers very little amenities to people in the surrounding neighborhood. As a long time Eckington resident who has witnessed the changes in Bloomingdale, Eckington and NOMA I can honestly say that many of the plans prioritize profits for developers and revenue for the city over improving the quality of life for existing residents.