Environmental Protection Agency (“EPA”) Administrator Lisa Jackson’s sudden resignation last week is not surprising in light of the recent revelations about the EPA’s use of “alias” e-mail accounts, purportedly for private communications between EPA officials. The use of such “aliases,” to protect confidential agency communications, appears on the surface benign. However, in the face of the statutory mandate for Federal government transparency, represented by the Federal Freedom of Information Act, 5 U.S.C. § 552, et seq., (“FOIA”), it is an ominous harbinger of the secretiveness of those who are appointed to serve the American public.
FOIA requires that each Federal agency, among other things:
“make available for public inspection and copying —
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a member of the public . . .”
5 U.S.C. § 552(a)(2). The practical impact of that mandate is to allow all citizens access to the informational basis of Federal decision making. FOIA does contain a number of exemptions often used by agencies to avoid disclosure of information to the public. These include, most notably, and most often used, the exemption for “(5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). Many agencies have interpreted this more broadly to include “deliberative matters.” Nevertheless, using the pathways allowed by FOIA, a significant amount of information from government agencies is accessible to the public. Moreover, the great majority of agencies have appeared in the past to comply with FOIA’s requirements, if sometimes grudgingly.
No so with EPA. An audit by the EPA Inspector General, an official assigned to, but independent of, EPA, has revealed that Administrator Jackson routinely used the alias “Richard Windsor” to conduct EPA business. Congress has gotten in on the investigation as well. The Chairpersons of both the House Energy and Commerce Committee and its investigative subcommittee have weighed in with the request for detailed information concerning the EPA’s internal practices for electronic recordkeeping and alias e-mails. Surprisingly, EPA has coolly responded that it has been using the practice of alias e-mails for at least 10 years.
The practice is not merely offensive from a public policy perspective, but from a legal perspective as well. FOIA is an instrument whereby the public, even though unsophisticated in the ways of government decision making and recordkeeping, may request access to their bases. If the process is subverted by diversion of information into hidden channels, such as that used by Administrator Jackson, about which the public is uninformed, and, thus, from which it could not request information, the fundament of informed, democratic government is challenged.
Most likely because of her disregard for public disclosure, Administrator Jackson has been shown the door. The question remains, however, as to the number of other agencies that are using the same techniques to avoid disclosure. To avoid short shrift in the discovery of information from any Federal agency, the best practice for the interested public is to broaden FOIA requests to include all e-mail accounts, “alias” as well as official, under which the agency does business.