FEDERAL AGENCIES

DOE, FERC leaders used personal emails for business

The revelation last March that Democratic presidential front-runner Hillary Clinton exclusively used a personal email server while leading the State Department sparked trouble for her campaign and the Obama administration.

Clinton's email server has since been found to contain emails that should have been marked as classified or top secret, providing political fodder for her Republican opponents. Other administration officials -- from Defense Secretary Ash Carter to Lois Lerner, the embattled former IRS director of tax-exempt organizations -- have also been caught using private email for work purposes.

Yet a Greenwire survey of two dozen environment and energy agency leaders found that the problem is even more widespread than previously reported. A fifth of those officials -- including Energy Secretary Ernest Moniz -- have used private email accounts for work communication, according to records obtained under the Freedom of Information Act (FOIA) and agency responses to reporters' queries.

The survey also showed Moniz and other top administration officials have not one but two government email accounts, which agency representatives say are necessary to limit communication with the public and reduce the risk of cyberattacks.

Government information experts said both practices can be troublesome.

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Daniel Metcalfe, the founding director of the Justice Department's Office of Information and Privacy who served as the nation's FOIA czar from 1981 until 2007, said having two government email accounts could significantly undermine the public's right to see what regulators are doing on their behalf.

Two government accounts for one agency leader are only "OK if both the agency's FOIA shop and the people who work for me [the leader], who get the record search tasking from the FOIA shop, know that I have two government email accounts to search through," Metcalfe told Greenwire. "Otherwise, it would hold enormous potential for circumventing FOIA."

Now an adjunct professor at American University's Washington College of Law, Metcalf also said agency officials should only use personal email for government business as a last resort.

"That's not flatly prohibited, but it should be done only out of necessity, in exceptional circumstances -- and even at that, it requires immediate follow-up, to forward any such emails to a government account for official record preservation," he said.

One official who used several personal email accounts was Ann Begeman, one of three members of the Surface Transportation Board (STB), a regulatory agency charged with resolving railroad rate and service disputes as well as reviewing proposed railroad mergers.

At various times over three years, she sent work emails from a Yahoo account, a Gmail account and -- on the day after she was sworn in -- from her old Senate Commerce Committee account.

Begeman wasn't the only official to correspond from a non-work account in the days leading up to or shortly after taking office.

STB member Deb Miller sent emails from her work account at the consulting company Cambridge Systematics to the agency's director of human resources and a legal adviser about the paperwork she needed to be sworn in. She later responded to that email chain from a Yahoo account.

Similarly Colette Honorable, a commissioner on the Federal Energy Regulatory Commission, emailed her agency's spokesman about photos and biographical information on the day she was sworn in. Then in the first email sent from her work account, she asked the agency's HR director to "please use my FERC account now that it is operational."

Other officials were less conscientious. Even once she got up and running at STB, Begeman continued to use personal email accounts.

In August 2011, three months after she officially joined the board, Begeman emailed her special assistant from a Yahoo account asking whether she could talk to three key STB officials about an "urgent issue." It's unclear what issue she was discussing because details of that email were redacted.

Then in April 2013, she sent an email with the subject line "One addition" to the STB chairman's chief of staff from a Gmail account. The body of that email was also largely redacted.

The Department of Energy didn't provide Greenwire with the first email sent by Moniz from his personal account for work purposes, despite receiving a FOIA request for that public record. But a department spokeswoman confirmed that he has used a private email account while on the job.

"In the rare event of technical issues, the secretary has on occasion used his personal email account for official business but ensures that those emails are all properly documented and filed as part of the official record," the spokeswoman said.

Another administration official who used a previously unreported personal account for official business was former FERC Commissioner Philip Moeller. In October 2006, three months after he started at the agency, he emailed an airplane ticket receipt and travel itinerary from a redacted personal account to an assistant.

But Moeller, who is now a senior vice president at the Edison Electric Institute, an association of investor-owned power companies, argued that such communications shouldn't have been considered work emails.

Messages sent from his personal account served as "travel redundancy communication when I was traveling during my wife's pregnancy," he said in an email to Greenwire. "I didn't use it for official business."

New guidance

As Clinton has noted in defending her private email server, the law on private emails has evolved over the course of the Obama administration.

Since late 2014, federal records law has required "officials who use non-official email accounts to copy or forward those emails into their official accounts within 20 days or be subject to disciplinary actions," David Ferriero, the archivist of the United States, said in a column for the summer 2015 issue of Prologue magazine. "Use of a nonofficial email account should only be used as a last resort."

But even before then, the use of private accounts was strongly discouraged.

"While agency employees should not generally use personal email accounts to conduct official agency business, there may be times when agencies authorize the use of personal email accounts, such as in emergency situations when Federal accounts are not accessible or when an employee is initially contacted through a personal account," the National Archives and Records Administration said in a September 2013 bulletin to all federal agency heads.

"In these situations, agency employees must ensure that all Federal records sent or received on personal email systems are captured and managed in accordance with agency recordkeeping practices," NARA added. "Agency policies and procedures must also ensure compliance with other statutes and obligations, such as FOIA and discovery."

The White House has repeatedly pleaded ignorance and criticized the practice when confronted over administration officials' use of personal email accounts for official communications.

"I'm certainly not aware of any officials who are currently using their personal email for official government work on a regular basis," White House spokesman Josh Earnest said at a briefing last December. He was responding to questions raised by a New York Times story about the Defense secretary's use of a personal account to conduct some government business.

"But if -- let me just say it this way -- if there are, this surely is yet another reminder of why that would be a poor choice," Earnest told reporters.

STB and FERC did not respond to requests for comment on their email practices and the frequency with which top officials used personal emails for work purposes. Because Greenwire requested only the first email from any and all accounts agency leaders used in an official capacity, it remains unclear how often private accounts were used at the agencies.

The attention Clinton's troubles brought to the use of private emails seems to have had some impact on energy and environment agency leaders. For example, a month after the scandal broke, Begeman forwarded to her work account the April 2013 email she had sent to the STB chairman's chief of staff from her Gmail account.

Too many government email accounts?

The survey of environment and energy agency leaders' first emails also uncovered some surprising secondary accounts.

Having more than one government account is permitted by NARA. Situations where such an arrangement could be necessary include when public and internal correspondence or classified and unclassified information need to be kept separately.

But the recordkeeping agency in its 2013 bulletin said that "agencies must ensure that the name of an individual employee is linked with each account in order to comply with FOIA, discovery and the requirement to transfer permanent email records ... to NARA."

Former U.S. EPA Administrator Lisa Jackson's infamous "Richard Windsor" account is one of many email addresses during the Obama administration that have drawn criticism in light of that guidance (Greenwire, March 3, 2015).

For example, Lerner, the IRS official who allowed additional scrutiny to be directed at political groups seeking tax-exempt status, was caught using a "Toby Miles" email address, which the National Review reported was a combination of her dog's name and husband's surname. Former Attorney General Eric Holder, on the other hand, simply used basketball legend Kareem Abdul-Jabbar's birth name, Lew Alcindor, as an email alias while at the Justice Department, VICE News recently found.

Moniz also has two government email accounts, including one called "S1," documents show.

The S1 email account is used by Moniz on a daily basis and is searched in response to FOIA requests and other investigations, according to the DOE spokeswoman. Agency staffers sometimes refer to the Energy secretary as S1, a nickname that was first used on the secretary's physical mail slot at DOE.

There is also a "Secretary Moniz" email account that is used occasionally for internal communications, such as departmentwide announcements.

The first email from the S1 account -- a blank message with the word "TEST" in the subject line -- was sent to Mark Appleton, Moniz's former "body man," a week before he was officially sworn in (Greenwire, Oct. 2, 2015).

It took the new secretary another week to send the first note out from the Secretary Moniz account, which was an invitation for all employees and contractors to attend a "Town Hall session in order to let you know about emerging Department challenges and opportunities and, more important, to hear your feedback and ideas on how we can better achieve our mission."

The DOE spokeswoman emphasized that "while the Secretary would sign off on any emails signed by him that are sent from that [Secretary Moniz] account ... he does not have day-to-day access to the account, which is handled by staff members."

Another administration official who the survey shows has a secondary email account is Dan Ashe, the director of the Fish and Wildlife Service, an agency that doesn't deal with classified information and has spending authority that's nearly 20 times less than the size of the DOE budget. In at least one instance, he has used this account to respond to emails sent to his public "dan_ashe" account, which appears to be monitored by another FWS staffer.

The second email account, the name of which was redacted, is necessary "due to the risk of Denial of Service Attacks (email bombing), as well as the high level of form letter submissions from public action campaigns that can overwhelm our email server and prevent the Director from being able to effectively and efficiently conduct daily business," agency spokesman Gavin Shire explained in an email.

"Alternate accounts" at Fish and Wildlife may also send mass emails to staff on behalf of the regional directors, Shire added, before noting that "all accounts are searched when FOIA requests are filed."

Others in the Obama administration also use such alternate accounts for work email.

Documents show EPA Administrator Gina McCarthy has two government email accounts. Unlike her predecessor, however, both accounts are tied to her name as NARA guidance requires.

Melissa Harrison, an EPA spokeswoman, said having a secondary account is needed for practical purposes because an administrator's public-facing email address can receive more than a million messages per year.

"All EPA Administrators have had official EPA accounts that are monitored by EPA employees on our government server and we have always discouraged the use of private emails," Harrison said.

Interior Secretary Sally Jewell, who oversees FWS, also has two official government email accounts. One of those accounts is used to conduct official business and the other is handled by Interior staff for broad departmentwide announcements, according to agency officials.

A Interior spokeswoman added that the department follows NARA guidance regarding its email records.

Reporter Elizabeth Harball contributed.

Twitter: @corbinhiar Email: chiar@eenews.net

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