September 10, 2013
Three federal executives whom House Republicans have accused of using personal email accounts to hide controversial decisions explained their online communication habits Tuesday at a sometimes-contentious House committee hearing.
While all three acknowledged some use of private accounts to ease work flow, they insisted they had no intention of violating the 1950 Federal Records Act and other transparency laws, and they agreed with the need for improved training in electronic record-keeping, as recommended by a White House technology specialist and the Archivist of the United States.
“Emails are the property of the agency in which people work,” said Darrell Issa, R-Calif., the chairman of the House Oversight and Government Reform Committee who had long sought testimony from the three. Using personal accounts “violates the Presidential Records Act, the Federal Records Act, and the intent of Congress,” he said, because their contents are unavailable to members of the public and the press using the Freedom of Information Act.
The abuse of private email accounts by executive branch employees goes back to the “sunset of the Bush administration and the dawn of the Obama administration,” added Issa, whose committee has cleared legislation to update and tighten federal electronic records requirements. Past Democratic panel chairman Rep. Henry Waxman, D-Calif., also explored the issue. But the difference today is that “with all these new technologies,” the laws have clearly been circumvented and not corrected, beginning “from the moment” Obama Environmental Protection Agency Administrator Lisa Jackson came to office in 2009.
Ranking Member Rep. Elijah Cummings, D-Md., disagreed. “Any suggestion Obama is less transparent fails to address reality,” he said, adding that under the Bush administration, records were lost on email traffic covering 88 officials for hundreds of days at the time of the mass firing of U.S. attorneys and the unfolding of the Jack Abramoff lobbying scandal. “In contrast, Obama took significant steps to improve transparency.” Former EPA chief Jackson, now vice president of environmental initiatives at Apple Inc., said she approached official email with “an abundance of caution.” Like her predecessors, she was assigned two addresses, reserving the second -- due to the volume of email that can approach 1.5 million a year -- for communication with senior officials and the White House. “It’s about time management and efficiency,” she said.
Jackson had originally suggested naming her second account “adminjackson” but technical staff warned her that this would show up too easily in searches. So she picked the tongue-in-cheek name “Richard Windsor,” a combination of her family’s hometown in New Jersey and the family dog. “My practice was to forward any emails on EPA business to the official account for the record, and I did not intend to circumvent transparency laws,” she said. “I’ve come to accept there are those who second-guess or question motives and assume a hidden agenda.”
Gary Gensler, chairman of the Commodity Futures Trading Commission, said he came to office in the midst of the financial crisis and having been a “stay-at-home” dad, he was “not in tune with the ways of work email” while telecommuting. Hence in “doing routine engagement with CFTC staff,” part of it was done outside business hours and he used his personal account for what amounted to about a tenth of his traffic.
Gensler thanked the CFTC inspector general for documenting that “there was no indication of trying to hide anything” and for helping provide 11,000 emails to the committee—98 percent of which turned out to already be at federal agencies.
CFTC had no robust training program, he added, but it is now working with the National Archives and Records Administration to improve it.
A similar explanation came from Jonathan Silver, former executive director of the Energy Department’s Loan Program Office, now with the think tank Third Way. “The government’s IT system was old and cumbersome” when he was laboring in 2011 while traveling and on weekends to meet “a tight timeframe established by Congress” to save such loan recipients as the since-bankrupt Solyndra solar panel company. “I attempted to be as efficient and productive as possible, not to circumvent the Federal Records Act,” Silver said, adding that he too had turned over all relevant emails to the committee “the majority” of which were previously forwarded to government recipients.
Issa remained skeptical, raising the specter of a lobbyist with Silver’s attorney’s firm interfering with committee inquiries and displaying for Silver one of his own emails in which he counsels Energy staffers to avoid putting personal email addresses in official emails because “they become subpeonable.”
Issa questioned Jackson on her suggestion to an environmental lobbyist who is a personal friend that she use her personal email. He said the law requires the entire database of agency emails. “You don’t get to decide,” he scolded. “Frankly, you put us at risk of lawsuits. You didn’t do your job right.”
Jackson said the lobbyist’s business request for a meeting was all done through official email and that the personal account emails were “chatty.” She also asked “for fairness, because people need to be trained” and the rules are a “moving target.”
Rep. Gerry Connolly, D-Va., came to Jackson’s defense, saying the lost emails under Bush “were systematic, while this hearing is trying to make a case study of Jackson as an evil genius who misused federal property to eviscerate the concept of transparency for all time.” Sarcastically, he surmised that Jackson in her four years enforcing environmental protection laws “focused like a laser beam on these two emails.” He said such an executive more probably feels that “‘I’m busy and from time to time I might slip,’ which is then perceived as invidious desire to circumvent the laws.”
David Ferriero , archivist of the United States, confirmed to the panel that while NARA discourages alias email accounts, there is “nothing in the law that prohibits them” and that sometimes circumstances make them necessary. “We don’t care how many accounts you have as long as those on which you’re doing federal business are captured” for the record.
He said agencies are making “good progress” on implementing President Obama’s Nov. 28, 2011, memorandum on electronic records and described detailed guidance the Archives issued on use of software called Capstone to ease email sorting and retention. Ferriero also is working with the Office of Personnel Management to create the first federal job classification for the job of federal records manager. “It requires a cultural change involving the inspector general, the chief counsel, the chief information office and the entire agency making the transition to electronic records management,” he said.
Andrew McLaughlin, the former White House deputy chief technology officer now senior vice president at Betaworks, told the committee, “We’re moving into an era in which every executive branch employee will not only have private email but a parallel system of apps, a dozen vehicles to communicate with friends and former co-workers” such as Facebook, Tumblr, Twitter, Linked-In and Snapchat. He recalled that while working on earthquake relief for Haiti in 2010, he had to use Skype to send screen shots even though federal agencies weren’t authorized for it.
McLaughlin proposed a “safe harbor” account for submission of problematic communication; a general-use form on agency websites for use by members of the public who lack specific email addresses for employees; and a standardized message on all secondary accounts advising recipients of which email address is appropriate for official business.
September 10, 2013