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    'Secret' Email Accounts Raise More Questions, Concerns About Government Transparency

    Liz Woolery, June 14, 2013

    Abstract: An investigation by the Associated Press has uncovered the practice of secret government email accounts. As more details emerge, the AP’s findings raise important questions regarding transparency and the Freedom of Information Act.



    While government transparency advocates were (understandably) wrapped up in the fallout from the revelation of the National Security Agency’s PRISM program last week, another Obama Administration transparency story snuck in under the radar. On Tuesday the Associated Press reported on the extent to which some members of the Administration are using secret government email accounts to conduct government business. The AP report was a follow-up investigation to a 2012 story which first revealed the existence of these email accounts; the news organization’s findings came after it filed a Freedom of Information Act request earlier this year. The AP’s findings, discussed more below, raise two important issues: First, the implications for transparency in government when government officials conduct business using unlisted email accounts; and second, the AP’s experience filing a FOIA request is in itself worthy of discussion – namely the fact that, as the news organization revealed, the Labor Department initially demanded that the AP pay more than $1 million dollars to fulfill the FOIA request.

    A Transparency Problem

    The AP investigation came after a 2012 finding that administrators at the Environmental Protection Agency were using secondary, unlisted email addresses. At the time the AP identified former EPA official Lisa Jackson as having a secondary email address under the name “Richard Windsor” for her work at the agency. Things got even weirder when news agencies dug into Jackson’s alias, finding that EPA had documented government certifications and several training courses the fictional Windsor had completed. Further, after the Senate Committee on Environment and Public Works released some of Windsor’s emails in May, it became clear that even prominent individuals such as the CEO of an environmental marketing/consulting firm had been duped by the address, believing they were corresponding with a real EPA employee named Richard Windsor. At the time of the AP’s initial investigation in 2012, news agencies reported that the practice of having both an internal and a public email account was standard for the EPA. In the AP’s follow-up investigation this spring, the news organization was able to identify several other agencies with secret or unlisted email addresses, including the Department of Health and Human Services and the Labor Department. According to White House Press Secretary Jay Carney, prior administrations have engaged in this practice as well.

    The overwhelming concern with this practice falls squarely within the truism that “you don’t know what you don’t know.” If journalists, activists, or members of the public are unaware that certain records – in this case, email addresses and the associated email accounts – exist at all, they have no opportunity even to ask for the records. Carney tried to dispel this notion, explaining that “Any FOIA request or inquiry includes a search in all of the email accounts used by any political appointee.” However, the AP’s experience tells a different story. The news organization had little success accessing these records; most of the agencies for which the AP filed a FOIA request have failed to turn over email addresses for political appointees. Further, the AP said it was unable to “independently find instances when material from any of the secret accounts it identified was turned over.”

    Equally disconcerting is the suggestion that these email accounts might simply disappear into the ether when their owners are no longer at their posts. The federal government maintains a contact page for the public to access elected and appointed government officials. Users can search by agency or topic or narrow the selection to state legislators, U.S. senators or representatives. What users will not find, however, is the secret email address for Secretary of the Department of Health and Human Services Kathleen Sebelius who, in a video interview, stated that she maintains a “private” email account which receives 400 emails each month (compared to a whopping 27,000 at her publicly available address). But what happens when Sebelius steps down as DHHS secretary? Who is keeping track of these unlisted email accounts? Anyone? The answers to those questions are unclear, and so too is the extent of the practice.

    In addition to members of the public not knowing that these accounts exist, it is unclear who within a given agency might know about a secret email account – especially when that account is listed under an alias, as was the case with Jackson/Windsor. This could raise further problems for agency compliance with FOIA requests. For example, if an individual charged with handling FOIA requests at the DHHS is unaware that Sebelius has a secondary email account, he or she will be unable to comply fully with a FOIA request of Sebelius’ emails. Not only that, but that individual won’t even know that he or she is accessing only a partial record of Sebelius’ emails.

    There is no doubt that 27,000 emails is far too many for any single person, or even any single person with a team of dedicated assistants, to go through each month. That’s nearly 1,000 emails a day. Spread over an 8-hour workday that would come out to over 100 emails every hour. Combing through that many emails is an unfathomable task, and especially so when those numbers multiply once all government agencies are accounted for. Secret email accounts, however are not the answer. The Obama Administration has repeatedly affirmed its commitment to transparency. The practice of non-public or non-listed email accounts flies in the face of such transparency efforts, especially when there seems to be little organization to how the practice has been implemented and there is no clear view of how widespread the practice is. Even superficially, the practice of secret or unlisted email accounts creates the perception that government officials are trying to keep day-to-day business out of the public eye. This perception is justified – particularly when the secret email accounts are registered to aliases or pseudonyms. In the wake of the PRISM scandal, the Obama Administration should act on its commitment to transparency in government, and a logical starting point would be to evaluate the practice of secret email accounts.

    High Price to Pay for Transparency

    Finally, the literal “price” for transparency in this instance is worth at least a brief mention. As the AP explained,

    “The Labor Department initially asked the AP to pay slightly more than $1.03 million when the AP asked for email addresses of political appointees there. It said it needed to pull 2,236 computer backup tapes from its archives and pay 50 people to pore over old records. Those costs included three weeks to identify tapes and ship them to a vendor, and pay each person $2,500 for nearly a month's work.”

    Though the AP is one of the most successful and largest news organizations in the world, it is hard to imagine that the AP would not bat an eye at the $1 million price tag for these email records. Ultimately, the AP challenged the fees and prevailed after it directed the Department of Labor to its own FOIA fee policy. That policy states that “representatives of the news media are charged for photocopying after the first 100 pages.” The DOL’s practice, then, is not to charge news organizations for the labor associated with complying with FOIA requests.

    While the AP ultimately succeeded in its effort to pay only for the photocopies (and not labor), not all individuals who submit FOIA requests are as familiar with FOIA guidelines as the AP – and certainly not all have the legal department the AP has. In short, while the Labor Department did the right thing and the AP paid for only what it should have, not everyone may be as lucky. An independent news organization, an investigative blogger, a citizen journalist, or a cooperative news start-up may be so scared by a $1 million price tag as to back off from the request immediately. Ultimately, even putting a mistaken $1 million price tag on access to information will be too high a price to pay for many news organizations, and it certainly is too high a price to pay for individuals using FOIA on their own.

     


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