Feds' personal e-mail use creates potential records gap

When government e-mail use comes up in the news, it is usually as a small piece of a larger political tempest. Case in point: the nomination of Thomas Perez for the post of Labor secretary has been hamstrung by allegations that Perez used a personal e-mail account to conceal legal negotiations in a fair housing case when he headed the Civil Rights division at the Department of Justice.

Rep. Darrell Issa (R-Calif.), who chairs the Oversight Committee in the House of Representatives, issued a subpoena to Perez on April 10 requesting 1,200 e-mail messages sent from Perez's personal account that were purportedly on government business. An April 18 follow-up letter from Issa chided, "The fact that you have distributed your personal, non-official e-mail address to such a wide variety of professional contacts raises questions about your recognition of the importance of avoiding the use of your personal e-mail account to conduct official business."

Leaving aside the merits of the specific complaints against Perez, the use of personal e-mail to carry out government business is not necessarily out of bounds. Some agencies, like the Environmental Protection Agency, expressly forbid the practice, but federal regulations provide for agencies to allow employees the use of non-official e-mail systems. However, agencies are required to make sure messages that qualify as federal records are preserved through official recordkeeping systems. And it is an open question as to whether federal employees are complying with these rules.

"I do think that many agencies are not monitoring the situation carefully enough," said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a watchdog group that monitors government openness.

"The problem is that usually when outside e-mail accounts are used, those messages don't get archived as part of the agency records," Weismann said. "Unless the agency has a way to capture them, there's no assurance they will be saved, and if they qualify as records [under the Federal Records Act], then they need to be."

The problem of archiving messages goes deeper than just the use of outside e-mail. While the White House has a system in place to create searchable archives of employee e-mail including the metadata that identifies the recipients, timestamps, and other information, many agency e-mail systems do not create archives that can be managed electronically. The problem, Weismann says, is that agencies have the "outdated view that e-mail doesn't really count. That they're not records."

The government is looking to change this way of thinking. A memo from the Office of Management and Budget and the National Archives and Records Administration issued last August instructed NARA to issue specific guidance for the sustainable storage and transfer of e-mail, and to report on the feasibility of a centralized cloud-based system to store non-classified electronic record by the end of 2013. The overarching goals of the project are to have all e-mail records managed electronically by the end of 2016, and all electronic records in that category by the end of 2019.

E-mails sent by agency heads are typically considered records. But people further down on the organizational chart in agencies are left to their own devices. E-mails that are preserved are often printed out and collected, which presents problems of its own, said Patrice McDermott, executive director of the group OpenTheGovernment.org.

"To the extent that they get printed out, you're dependent on people to print it out with all of the metadata, so that you know who it came from, who else it was sent to," McDermott said. But then it's impossible to follow the thread of where it circulated, what the attachments were, what was sent back as notes."

Some senior government officials avoid e-mail altogether. Janet Napolitano, head of the Department of Homeland Security told reporters at a March event that she doesn't use e-mail because it "just sucks up time." And former EPA chief Lisa Jackson used an official alias account under the name of Richard Windsor to avoid the high volume of e-mail sent to her public address -- an approach that proved much more problematic than Napolitano's blanket avoidance .

There are some hard and fast rules about e-mails that are consider records under the Federal Records Act, including minutes of important meetings, records of the formulation and carrying out of policy, and documents required for congressional oversight. But there are gray areas as well, such as e-mailed comments on policy memo drafts and documentation of agency decisions made at meetings or over the phone. Whether or not something rises to the level of a federal record hinges on the interpretation of words like "substantive," and "significant."

The informality of e-mail communication makes it more difficult for government employees to identify where routine personal contact leaves off and work begins, Weismann said. "You would never write a memo that was all work and at the end say, 'have you seen this movie, I really recommend it.' In an e-mail that wouldn't be out of place."

It remains to be seen whether the use of personal e-mail comes back to haunt Perez in his bid to lead the Labor department. His nomination is scheduled for a May 8 vote by the Senate committee on Health, Education, Labor and Pensions.