Technology entangles federal officials in open-records quagmires

Lisa P. Jackson, the former EPA chief who used both secondary and private email accounts to conduct government business, said she never intended to violate open-records laws and said only those who want to “theorize that there is a hidden agenda” would see her actions negatively.

Under fire for months amid reports that she tried to shield her official communications from scrutiny, Ms. Jackson, who left the Environmental Protection Agency early this year and now works for Apple Inc., got a chance to publicly explain herself to Congress, saying she had a learning curve to get up to speed with EPA email procedures.

“Every public official has to use her best judgment in ensuring appropriate use of personal emails,” she testified to the House Oversight and Government Reform Committee. “My practice was to forward any email that I deemed pertaining to government business into an official EPA.gov email account so that it could be captured for record-keeping purposes.”

Federal law doesn’t prohibit agency business from private accounts, but does call for those emails to be forwarded to official accounts so that the contents can be searched and discovered in response to requests.

But Christopher Horner, the researcher who exposed Ms. Jackson’s use of both a secondary government account and her private email, said her defense isn’t good enough: Officials themselves shouldn’t be judging what records are government business because they have an incentive to conceal them.

The fast pace of technological change has left federal open-records laws and practices struggling to catch up. Public officials use email, instant messages on computers and text messages on mobile phones to communicate with one another and with the public.

Ms. Jackson and two other witnesses, one former official in the Energy Department and one current official who heads the Commodity Futures Trading Commission, talked about their challenges as they tried to grapple with open-records laws and email.

All three have been accused of using their private accounts for government business, though all said they weren’t trying to avoid the law, but just found it more convenient or were trying to steer personal matters away from their government accounts.

In one key instance, Ms. Jackson sent an email telling a lobbyist to contact her on her private account rather than the public one.

Ms. Jackson said the lobbyist was also a personal friend, and she intended to say that their non-business conversation shouldn’t be through government email. But lawmakers on the committee said that was not how it came across.

“I’m sure you can see how a skeptical reader of that email might reach another conclusion, wouldn’t you?” said Rep. Trey Gowdy, South Carolina Republican.

In the case of Jonathan Silver, the former Energy Department official who oversaw the loan guarantee program that approved the failed Solyndra project, lawmakers said he regularly used his personal email to conduct official business, and that ended up shielding key records from Congress when it was investigating the Solyndra bankruptcy.

In one email, Mr. Silver even warned other agency employees not to include their private email addresses in government emails because “that makes them subpoenable.”

Committee Chairman Darrell E. Issa, California Republican, said because Mr. Silver used his private account and later deleted those emails, some records the committee wants to see cannot be turned over.

“Why is it I should not consider that a deliberate circumvention?” Mr. Issa demanded.

Mr. Silver countered that it was all about intent.

“I did certainly use my private email from time to time. But as I said before and want to reiterate now, it was certainly never my intent to evade,” he said.

Violating federal records management laws doesn’t carry stiff penalties, and all sides agreed that training is lax and enforcement is difficult.

But Mr. Issa said the use of private emails that began in the Bush administration has become worse under President Obama.

Committee Democrats countered that transparency overall is much better under this administration, though they said there is room for improvement and for tweaks to keep up with technology.

Rep. Elijah E. Cummings of Maryland, the ranking Democrat on the committee, said Republican leaders have delayed action on a transparency bill that the panel approved this year and included a requirement that set a five-day deadline for forwarding business emails from personal accounts.

Mr. Silver and Gary Gensler, the chairman of the Commodity Futures Trading Commission, said they were not trained on compliance with open-records laws when they took their federal posts. Ms. Jackson said she was trained.

The EPA’s inspector general is conducting an investigation into reports that the agency has a recurring problem with storing and providing agency records.

Meanwhile, an internal investigation into the Commodity Futures Trading Commission has found problems, and Mr. Gensler said he is taking steps to require better rules and better training at his agency.

Last month, a federal judge ruled that there was evidence the EPA acted in bad faith when it conducted a records search for the Landmark Legal Foundation, a public-interest law firm. In that ruling, Judge Royce C. Lamberth questioned the agency’s “truthfulness” and said personal email accounts of top EPA officials can be considered “relevant documents” for some records searches.

“EPA’s silence speaks volumes; its failure to deny the allegations that personal accounts were being used to conduct official business leaves open the possibility that they were,” Judge Lamberth wrote.

At Tuesday’s hearing, Ms. Jackson also explained her decision to use a main EPA email account and to create a second account under the name “Richard Windsor,” which she used to communicate with top White House and EPA officials.

She said the alias was tongue-in-cheek: When she took the top EPA job, her husband and sons were still living in East Windsor, N.J., and their family dog’s name was Ricky.

The key question is whether those in charge of open-records requests knew to search that account when they were looking for documents. She testified that the Windsor account was searched, while Mr. Horner questions how often that happened.

“Obviously, the false identity would frustrate the act it was subject to, the only conceivable reason for creating it,” he said.