The Center for Responsibility and Ethics in Washington asked the department's inspector general to look into whether employees have violated the Federal Records Act, which requires agencies to archive records of official business.
CREW Executive Director Melanie Sloan recounted in a letter to Inspector General John Higgins that the department's office of general counsel had informed her organization that Education Department personnel "often use private e-mail addresses" for business and that the department "wouldn't have access to that."
The information about private e-mail use surfaced during a discussion with Marcella Goodridge of the general counsel's office, other department officials and CREW's lawyer, Dan Roth, who had filed a Freedom of Information Act request for documents on the Reading First program, Sloan said.
Reading First, an elementary school literacy program, has come under fire from House Education and Labor Chairman George Miller, D-Calif., and Senate Health, Education, Labor and Pensions Chairman Edward Kennedy, D-Mass., for potential mismanagement and conflicts of interest. A September 2006 IG report found that the program director allegedly steered funding to states that implemented the literacy program using the director's favored approach.
"If, as Ms. Goodridge represented, Education Department employees are using or have used outside, non-governmental e-mail addresses for government business and have not retained copies of those records on the department's files, the department is failing to 'accurate[ly] and complete[ly] document the policies and transactions of the federal government' by failing to retain" federal records as required by law, Sloan told Higgins in her letter, dated Tuesday.
Besides her group, Miller has sought documents relating to Reading First program for his committee's own inquiry, Sloan added.
"In order for the department to respond to these and all other requests ... all responsive departmental records must be searched," Sloan wrote. "If, however, employees are regularly using private e-mail accounts to send official e-mail and the department neither tracks nor stores such e-mail, the full complement of responsive records clearly will not be produced to any requesters."
Education Department spokeswoman Katherine McLane dismissed CREW's claims that department staff were violating the law.
"Mr. Roth's portrayal of the conversation is simply wrong on very important facts," McLane said in a statement. "The truth is that department staff sought to help Mr. Roth get the information he needed with as little expense and delay as possible. No one at the department suggested that officials use private e-mail accounts for official business during those conversations."
CREW's call for an IG investigation is the latest in a series of developments that have brought e-mail use by federal officials under increased scrutiny.
The watchdog group, which often sides with Democrats, issued an investigative report in March, based on confidential sources, which disclosed the White House has lost more than five million e-mails generated between March 2003 and October 2005. The group has been trying to determine if White House officials using Republican National Committee e-mail accounts were doing so to avoid the mandatory record-keeping requirements under the Presidential Records Act.
In addition, the independent Office of Special Counsel has opened an investigation of allegations that General Services Administration employees used their government e-mail accounts for political purposes, a direct violation of the Hatch Act.
"How many other agencies are knowingly violating federal law?" Sloan said in a statement. "Complying with the law is not optional. One would think that those in charge of the government would understand this, but apparently not."