GovernmentExecutive.com

The adage "Think before you speak" perhaps could be updated to "Think before you send e-mails." These messages, as some government officials are learning, may end up splashed across newspapers to illustrate bungling in a national emergency.

The ubiquitous BlackBerry devices glued to the hips of federal employees have changed the way the government conducts business. They are a multitasker's dream come true: to e-mail without interrupting work flow. But they also have the potential to be the digital equivalent of the White House tapes that brought down the Nixon administration.

Can government employees expect privacy laws to protect their e-mails? The issue resurfaces as Congress investigates the government's disjointed response to Hurricane Katrina. In a Senate hearing last week, urgent e-mails that a FEMA official sent to headquarters from Louisiana as Katrina engulfed New Orleans became Exhibit A. And Special Prosecutor Patrick Fitzgerald has used copies of e-mails from White House aides to question their actions related to the leak of a CIA agent's name.

Under the Federal Records Act, e-mails are considered part of the official record, and lawmakers expect the Bush administration to hand them over when asked.

"When it comes to the conduct of government operations, those [e-mails] are considered public record," said Marc Rotenberg, executive director of the Electronic Privacy Information Center.

House and Senate panels have dragged ousted Federal Emergency Management Agency Director Michael Brown, Homeland Security Secretary Michael Chertoff, and other officials to hearings to grill them about what went wrong, and have used e-mails from subordinates to challenge their versions of events.

Lawmakers sought the e-mails because the technology was the "primary means of communication between top officials during the chaos," said a House aide involved in the investigation. "Their content and tone can help us shed light on the decisions made and not made -- and the thinking and emotion behind those decisions."

Marty Bahamonde, the first FEMA official on the ground before and during Katrina, acquiesced last week -- without a subpoena -- to the Senate Homeland Security and Governmental Affairs panel's request for his e-mails. And the country got an unflattering glimpse of its government at work.

"This is going to get ugly real fast," wrote Bahamonde to FEMA officials on August 28 from New Orleans -- the day before the hurricane bulldozed over Louisiana, Alabama, and Mississippi. In the following days, Bahamonde continued to e-mail FEMA headquarters and Brown about the increasingly dire conditions at the Superdome. The importance of his BlackBerry was highlighted by Bahamonde's comments: "phone connectivity impossible."

Bahamonde, a career employee, testified last week that Brown sent him to New Orleans to be his "eyes and ears." As the days unfolded, and Bahamonde's warnings fell on deaf ears, the e-mails not only documented who knew what and when, but reflected the federal government's disconnect from the plight of thousands of hurricane victims.

Before noon on August 31, Bahamonde e-mailed Brown a list of the alarming events occurring in New Orleans. At 2 p.m., Brown's press secretary e-mailed FEMA's public-affairs deputy director to say that Brown, who was in Baton Rouge, needed more time to eat dinner at a restaurant. Bahamonde e-mailed back: "Just tell her that I just ate [a meals-ready-to-eat] and crapped in the hallway of the Superdome along with 30,000 other close friends so I understand her concern."

Brown was also busy on his BlackBerry during the height of the crisis, questioning Chertoff's plan to name him the principal federal official in the area. After Brown's e-mail was read during a hearing, House Government Reform Committee Chairman Tom Davis, R-Va., observed, "With all that was swirling around, it strikes me that [Brown] was worried about his title."

Under the Freedom of Information Act, the executive branch can refuse to hand over documents that reflect day-to-day internal communication that has not resulted in a final policy on an issue.

If lawmakers had requested the e-mails under that law, the Bush administration could have invoked an exemption for Brown and other officials' e-mails, according to experts on information policy. But, the experts added, the administration would then face public scrutiny and lawmakers' wrath.

"When Congress asks, there is a different calculation," said Steven Aftergood, who oversees a project on government secrecy at the Federation of American Scientists. "Congress, after all, writes the checks." Aftergood offered a caveat that government e-mails related to personal matters have some protection under privacy laws.

Lawmakers have said they would subpoena records if need be, but so far officials have willingly complied with their requests. "FEMA is not in a good position to refuse," said Rotenberg.

Scott Armstrong, executive director of the Information Trust, said that if lawmakers request e-mails from officials high in the chain of command, the administration might invoke executive privilege to protect information discussed between the president and his closest aides.

One way to get around that, Armstrong said, would be to request a "blind copy" of missives that had been sent to other aides, since executive privilege would not apply to correspondence between aides. Government e-mails are archived, he noted, so they don't vanish from the record when they're deleted from the screen.