Judge says officials may have 'purposely' used personal emails to dodge FOIA

U.S. EPA leaders may have used personal email accounts to "skirt disclosure" under the Freedom of Information Act, according to a federal judge who ruled yesterday that the agency must submit to questioning on its use of nongovernment email accounts.

U.S. District Judge Royce Lamberth raised the possibility of such "bad faith" in an opinion released yesterday as part of a FOIA lawsuit in the U.S. District Court for the District of Columbia. The conservative Landmark Legal Foundation sued EPA last year, claiming that by withholding the emails of former Administrator Lisa Jackson and other top officials, the agency had failed to fully respond to a FOIA request.

In his opinion, Lamberth denies EPA's bid for a summary judgment in the case, pointing to evidence that "may indicate bad faith on the part of the agency."

That includes the use of personal email for agency business -- and EPA's apparent failure to include them in a FOIA search.

"The allegations are supported by one concrete example of a personal email being used for official purposes, and made against the background of several similar allegations raised in the media and by Congress," Lamberth wrote, referring to a disclosed email that originated from the personal account of Deputy Administrator Bob Perciasepe. "In response, EPA's silence speaks volumes; its failure to deny the allegations that personal accounts were being used to conduct official business leaves open the possibility that they were."


Lamberth ordered EPA to "submit to reasonable discovery," in which Landmark can question the agency on "whether and to what extent the EPA Administrator, Deputy Administrator, and/or Chief of Staff utilized personal email accounts to conduct official business during the relevant time period."

That means the group will be able to submit written questions and conduct depositions with top EPA officials, perhaps shedding light on the use of personal emails in agency business. Landmark is now in the process of determining which officials it will seek to question.

The order comes on the heels of a newly released email in which Jackson asks a Siemens official to contact her at her "home email," marking the clearest indication so far that the former EPA administrator used a third, undocumented email address (Greenwire, Aug. 14). Jackson also had two accounts using the epa.gov domain: one for the public, and one under the alias "Richard Windsor."

Under Lambert's order, Landmark will also be able to conduct discovery on whether EPA initially excluded the administrator, deputy administrator or chief of staff from the group's FOIA request.

Landmark had initially asked for all records on rules that were considered for public notice -- but never actually released -- between Jan. 1 and Aug. 17, 2012. The group's aim was to prove its contention that EPA intentionally delayed controversial regulations until after the 2012 presidential election.

Landmark and EPA agreed to narrow the broad request to "senior officials in EPA HQ." But EPA initially left out any records from the administrator, deputy administrator and chief of staff. It only released them later, after Landmark sued and the day before the agency filed its motion for a summary judgment.

That initial exclusion "suggests an unreasonable and bad faith reading of Landmark's FOIA request and subsequent agreement to narrow its scope," Lamberth wrote. And EPA's explanations for the mistake, he said, "contain numerous inconsistencies and reversals which undermine confidence in their truthfulness."

EPA declined to comment on the case, referring all questions to the U.S. Attorney's Office. But the agency has said in the past that it was awaiting recommendations from the inspector general's audit on EPA's email policies and practices.

It's unclear whether EPA would be able to retrieve any personal emails from officials, particularly those who have already left the agency, like Jackson.

Though Lamberth notes that EPA has never directly addressed the question of whether officials used personal emails to conduct agency business, he points to what appears to be the agency's disclaimer for why personal emails were not included in its FOIA search. EPA, he wrote, has specified that it "searched for and produced responsive documents from outside parties and accounts that were in its possession and control."

Lamberth's opinion may add more fuel to criticism from House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) and Senate Environment and Public Works Committee ranking member David Vitter (R-La.), who launched an investigation earlier this year on whether federal officials violate record-keeping laws when they use personal or "alias" email accounts to conduct business.

In a statement yesterday, Vitter called Jackson "the biggest culprit" in the practice.

"Even with EPA's recent promises to review and revamp its email practices and policies, the mere fact that the agency's Administrator was trying to circumvent 'sunshine' laws is a huge red flag for the effectiveness of the agency and the Administration," he said. "There is a statutory obligation to preserve and not destroy agency communications, and I hope that Ms. Jackson will take the appropriate steps to ensure all her communications during her time as head of the agency are properly preserved."

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