Cause of Action’s Dan Epstein and Michael Pepson recently wrote an article in Engage, a publication of the Federalist Society, discussing the legal implications of government officials using their personal e-mail accounts to do official business and whether these e-mails should be accessible to the public. Now, Politico is reporting that a “House Energy and Commerce Committee report out Tuesday is stocked with emails sent from private addresses,” of former White House staff. These e-mails included discussions of how to influence pending bills and specific ways to avoid disclosure rules by meeting outside the White House. Despite the Administration’s claims of transparency, these e-mails clearly violate that spirit.
What is raised in the Engage article is that if e-mails such as these had been requested through a Freedom of Information Act request, it is unclear whether a court would grant such access based on the current rules. This example makes the case even clearer that FOIA requests should sometimes include personal e-mails dealing with official business and therefore Congress needs to create definitive rules as to what those requests cover. The public having access to these e-mails could make it much harder for businesses and government officials to abuse their power and attempt to influence legislation through crony deals. Legislative bills should be negotiated in front of the public, not in secret behind closed doors during off-site meetings with lobbyists.
Cause of Action is dedicated to promoting economic liberty, and cronyism is antithetical to that principle. A more transparent and engaged government is the only way that officials in government, especially in the large administrative bureaucracy, can be held accountable to the public.
As Pepson and Epstein conclude in their article, “Ultimately, unless Congress legislatively clarifies whether the FOIA’s disclosure provisions apply to communications sent or received via private e-mail accounts and personal communications devices, a federal district court will be compelled to squarely and comprehensively opine on the application of FOIA’s disclosure provisions to federal employees’ work-related communications sent through personal channels in the course of adjudicating whether a particular agency has improperly withheld agency records.”
