Council email complaint filed Oct. 16, 2012

IN THE SUPERIOR COURT
FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION

D.C. OPEN GOVERNMENT COALITION,
P.O. Box 73771
Washington, D.C. 20056
Plaintiff,

v.

COUNCIL OF THE DISTRICT OF COLUMBIA
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Defendant.

 

 

 

 

Case No.: ____________

 

 

 

 

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiff D.C. Open Government Coalition, by its undersigned attorney, alleges for its Complaint:

  1. This is an action under the D.C. Freedom of Information Act, D.C. Code § 2-531 et seq. (“FOIA,” “the Act”), to order the production of public records improperly withheld by the Council of the District of Columbia (“the Council”) in response to a FOIA request made by the D.C. Open Government Coalition (“the Open Government Coalition” or “the Coalition”).
  2.  
  3. The Open Government Coalition seeks to compel the Council to permit inspection and copying of the public records requested in the Coalition’s FOIA request of March 19, 2012 – namely, any and all e-mails sent or received by Councilmembers by means of non-governmental e-mail accounts, during a defined, 60-day period, in the course of Councilmembers’ transaction of public business – i.e., “in his or her role as a public official.” The Coalition’s request expressly excluded any e-mails that are personal or private in nature.
  4. Despite acknowledging that the requested e-mails are likely public records by virtue of their subject matter, the Council has denied the Open Government Coalition’s request for these records.  The Council takes the position that Councilmember records of e-mail communications transacting public business are only within the control of the Council – and therefore only subject to FOIA – when sent or received through an official governmental e-mail account.  The Open Government Coalition believes that position is incorrect, because such records are within at least the constructive control or possession of the Council and could be gathered and disclosed with the reasonably diligent search required by FOIA.
  5. The District of Columbia is committed by statute to governmental openness, and a fundamental purpose of FOIA is to assist citizens in discovering what their government is doing.  The Council’s position that records of some public business may be hidden from view by Councilmembers is contrary to the legal requirements of FOIA, and also raises serious public policy concerns.  Openness not only promotes accountability of the government to the governed, but it also serves as a powerful check on corruption.  If the Council’s constricted view of its legal obligations is permitted to stand unchecked by this Court, Councilmembers would have carte blanche to hide e-mail exchanges about official business from public disclosure under FOIA.  Under this view, even a Councilmember working in a Council office or sitting at a government  meeting could move official exchanges “off the books” simply by opting to use a non-governmental e-mail account on his or her computer or mobile device – a practice that, based on information and belief, is now commonplace.  In effect, FOIA would be eviscerated as it pertains to the Council’s e-mail records.
  6. Indeed, the Council’s constricted view of its legal obligations to produce public records under FOIA would mean that any public documents not physically located on Council property – including, for example, official paper documents placed in a Councilmember’s briefcase, or taken out of a Council office by a Councilmember – would fall outside the ambit of FOIA, even if those documents remained within the control of a Councilmember.

JURISDICTION

  1. This Court has jurisdiction over this action pursuant to D.C. Code § 2-537(a-1) (“Any person denied the right to inspect a public record in the possession of the Council may institute proceedings in the Superior Court for the District of Columbia for injunctive or declaratory relief, or for an order to enjoin the public body from withholding the record and to compel the production of the requested record.”).  Because the Coalition’s FOIA request was made to the Council, no administrative appeal within the executive branch of the D.C. government is allowed, and any challenge to the Council’s denial is properly directed to the Superior Court.  Id.

PARTIES

  1. The Open Government Coalition is a non-profit organization dedicated to enhancing governmental transparency and freedom of information in the District of Columbia.
  2. The Council is the central and chief policy-making body for the District of Columbia.  The Council is subject to FOIA.  D.C. Code §§ 2-532(a), 2-537(a-1).  The Council’s denial of the Coalition’s FOIA request is the subject of this action.

FACTS

I.
Private E-mail Accounts Are Often Used to Conduct
Public Business in the District of Columbia and Elsewhere

  1. According to a December 7, 2011 Washington Post news article, District of Columbia Chief Financial Officer Natwar M. Gandhi and his chief of staff testified in civil litigation about their communications on personal e-mail accounts “for office purposes,” including such exchanges with D.C. Councilmembers.  In explaining this practice, the chief of staff reportedly testified: “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.”
  2. This statement about using non-governmental e-mail accounts for the purpose of avoiding disclosure of official communications under FOIA is remarkable only for its candor.  Councilmembers and others in the D.C. government have for years been reputed to use personal e-mail accounts to conduct government business.  As the Washington Post noted in an editorial published the same day as the December 7, 2011 news article, “[o]bservers and insiders of D.C. government say the use of private e-mail is so widespread as to be essentially a shadow level of government,” and “some council staff and members admit to the practice.”  Based on information and belief, one Councilmember in particular is known to use a “gmail” account almost exclusively for Council business.  The Council has also disclosed a legal advisory opinion indicating that at least one Councilmember has used a “Hotmail” account to conduct public business.
  3. Public servants in the District of Columbia are not alone in using private e-mail accounts to conduct official business now that technological advances have made such accounts readily available.  In recent years attorneys general in various states – including Alaska, Florida, Illinois, Maryland and Wisconsin – have issued advisory opinions concluding that public records housed in the private e-mail accounts of public officials remain subject to open-records laws.  State courts in New York, Pennsylvania, Washington, and elsewhere have reached the same conclusion in response to legal challenges to agency withholdings. 
  4. Faced with concerns about official business being hidden from public view, governors and other officials in various states have issued orders restricting use of non-governmental e-mail accounts for any official business.
  5. On July 10, 2012, D.C. Mayor Vincent C. Gray issued Mayor’s Order 2012-102, regarding “Use of Private Email to Transact Public Business.”  The order’s stated purpose was to “[e]nsure that all emails sent or received by District employees in which those employees are transacting public business are captured on servers … and available to Freedom of Information Act (‘FOIA’) requests as well as to investigative demands, litigation-related requests, and all other email search requests made by persons within and outside the District of Columbia government.”
  6. The Mayor’s Order “strongly discourage[s]” use of any personal e-mail accounts to conduct public business, and permits use of those accounts only when an official e-mail account is inaccessible.  Even in such situations, a government official must “cc” or “bcc” “the employee’s District-provided e-mail account.”
  7. As an Executive Branch Order, the Mayor’s Order does not on its face apply to the Council. 
  8. However, pursuant to the Rules of Organization and Procedures for the Council of the District of Columbia, Section 202 (Code of Official Conduct), “Councilmembers and Council staff shall take full responsibility for understanding and complying with the letter and spirit of all laws and regulations governing standards of conduct for District public officials, including those relating to … freedom of information.”

II.
The D.C. Open Government Coalition Requested Public Records Maintained in Councilmember E-mail Accounts

  1. Under FOIA, a “public record” includes all documents “prepared, owned, used in the possession of, or retained by a public body,” including the “Council of the District of Columbia.”  D.C. Code §§ 2-502(18), (18A); id. § 2-539 (incorporating definitions).
  2. Under FOIA, a “public record” expressly includes “information stored in an electronic format.”  D.C. Code §§ 2-502(18), id. § 2-539 (incorporating definitions).
  3. On March 19, 2012 , the Open Government Coalition submitted the FOIA request that is the subject of this action (“the Request”).  A copy of the Request is attached as Exhibit A.
  4. The Request sought “[a]ny and all e-mails sent or received within the past sixty (60) days by current Councilmembers using private (non-governmental) e-mail accounts, but only to the extent that such e-mails were generated in the course of the Councilmember’s official duties – i.e., were received or sent by the Councilmember in his or her role as a public official.”
  5. The Open Government Coalition clarified that the Request “does not include
    e-mails sent or received on private accounts that are personal or private in nature.  It merely seeks copies of e-mails that amount to transacting public business by means of private e-mail accounts within the past 60 days.  The request pertains to each Councilmember.”

III.
The D.C. Council Denied the Coalition’s Request,
Disclaiming Any Obligation Under FOIA to Disclose the
Public Records of Individual Councilmembers

  1. On March 27, 2012, the Council denied the Request (“the Denial”).  A copy of the Denial is attached as Exhibit B.
  2. The Denial asserted that “[t]he requested records are not among the public records of the Council of the District of Columbia.” 
  3. The Denial attached as an exhibit a three-page memorandum from the Office of the General Counsel, Council of the District of Columbia, to the Secretary of the Council, dated several months earlier, January 3, 2012, regarding “Freedom of Information Act and Councilmembers’ Personal Email Accounts” (“the Memorandum”).
  4. The Memorandum addressed an inquiry about whether public records from a Councilmember’s “Hotmail” account were subject to disclosure under FOIA.  The identity of the specific Councilmember was redacted.  Although the Memorandum “presume[d]” that the requested records qualify as “‘public records’ within the meaning of the District’s FOIA,” the Memorandum concluded that “because the Council does not possess or control the records in question, the Council is under no legal obligation to produce them.”
  5. Members of the Open Government Coalition, in an unsuccessful effort to resolve this dispute over the Request without litigation, exchanged correspondence with the Council (attached as Exhibit C) and then met with the Council’s General Counsel in August 2012.  However, the Coalition understands the Council’s final position to be that it has no obligation under FOIA to search for or to produce e-mail communications by Councilmembers about public business if those Councilmembers use a non-governmental e-mail account to send or receive such messages.

COUNT 1

VIOLATION OF FOIA

  1. The Open Government Coalition repeats, re-alleges, and incorporates the allegations in the foregoing paragraphs as though fully set forth herein.
  2. The Council is subject to FOIA, D.C. Code §§ 2-532(a), 2-537(a-1), and must release in response to a FOIA request any disclosable public records in its control or possession at the time of the request and provide a lawful reason for withholding any materials as to which it is claiming an exemption.
  3. The requested records are public records.
  4. The requested records are within the Council’s constructive control or possession because they are within the control or possession of Councilmembers.
  5. The Council’s refusal to search for or to disclose the requested public records violates FOIA.
  6. The Open Government Coalition is entitled to an order compelling the Council to conduct a reasonably diligent search for documents in response to the Request, including public records maintained by Councilmembers in non-governmental e-mail accounts, and compelling the Council to disclose those records in response to the Request.

REQUESTED RELIEF

WHEREFORE, the Open Government Coalition respectfully requests that this Court:

  1. Declare that the documents sought by the Request are public records under D.C. Code § 2-531 et seq. and must be disclosed;
  2. Declare that the documents sought by the Request are within the control of the Council under D.C. Code § 2-531 et seq. and must be disclosed;
  3. Order the Council to conduct a search and to provide all responsive documents to the Open Government Coalition within 20 business days of the Court’s order;
  4. Award the Open Government Coalition the costs of this proceeding, including reasonable attorney’s fees, as expressly permitted by FOIA; and
  5. Grant the Open Government Coalition such other and further relief as this Court deems just and proper.

Dated:  October 16, 2012

Respectfully submitted,Of counsel:

James A. McLaughlin
(D.C. Bar No. 469203)
[email protected]

Frederick V. Mulhauser
(D.C. Bar No. 455377)
[email protected]

D.C. Open Government Coalition
P.O. Box 73771
Washington, D.C. 20056

__________________________________

Chad R. Bowman (D.C. Bar No. 484150)
LEVINE SULLIVAN KOCH & SCHULZ, LLP
1899 L Street, N.W., Suite 200
Washington, D.C.  20036
(202) 508-1120
Facsimile: (202) 861-9888
cbow[email protected]

Counsel for Plaintiff
D.C. Open Government Coalition

Subject: