(Washington, D.C.) -- The D.C. Open Government Coalition filed a lawsuit Oct. 16, to compel disclosure of email correspondence in which members of the Council of the District of Columbia transacted public business through personal, non-governmental email accounts.
The lawsuit, filed in Superior Court, challenges the Council’s denial of a Freedom of Information Act (“FOIA”) request for all such emails sent or received by Councilmembers during a 60-day period in early 2012. The issue came to the Coalition’s attention after press reports suggesting that D.C. government officials, including several Councilmembers, routinely conduct official business through personal email providers such as Gmail or Hotmail – a practice that could be used to evade the disclosure requirements of FOIA.
“The Council’s position, if unchallenged, would lead to a massive loophole in the District’s public-records laws,” said James McLaughlin, a member of the Coalition’s board and co-chairman of its legal committee. “Officials could nullify FOIA by simply doing their work over personal email accounts.”
“The Coalition’s lawsuit seeks to affirm that a public record is determined by its substance and content, not by what email account or device was used to
create it,” he added.
Outside of D.C., nearly every jurisdiction to address the issue – including New York, Pennsylvania, Florida, Illinois, Alaska, Washington, and Maryland – has concluded that emails generated in the course of government business must be disclosed, regardless of whether a personal account was used. And D.C. Mayor Vincent Gray issued a July 10, 2012 order generally prohibiting executive-branch employees from conducting official business through personal email accounts.
As a legislative body, the Council is not bound by the Mayor’s order, and it has not adopted a similar policy. In a legal memo disclosed in response to the Coalition’s request, the Council’s general counsel acknowledged that emails generated on a personal account meet the definition of a “public record” if their subject matter is government business, but opined that they are “not in the possession or control of the Council” and need not be produced.
That position will be tested in the upcoming litigation. In an August 9 letter to Council Chairman Phil Mendelson, the Coalition argued that it “defies common sense to suggest that the Council has no control over … records that are literally at the fingertips of its members,” and pointed out that employees of a public body are typically expected to cooperate in the search for records responsive to a legitimate FOIA request.
The Coalition is represented by Chad Bowman of Levine Sullivan Koch & Schulz. The complaint is available at the Coalition’s website. Click here.
James A. McLaughlin
Co-Chair, Legal & Enforcement Committee,
D.C. Open Government Coalition
Associate Counsel, The Washington Post