If DHS Boss Has A Staffer Write Her Emails… Does It Count As Her Email Under A FOIA Request?

from the if-an-email-falls-in-a-forest... dept

In 2012, we pointed out how ridiculous it was that then Homeland Security boss Janet Napolitano, who self-described herself as a Luddite, admitted that she didn’t use email at all. This seemed troubling, given that DHS was ostensibly in charge of cybersecurity, and you’d hope that the boss would understand the basics of email. Of course, she later admitted to the real reason why she didn’t use email: it created a paper-trail that would make her too accountable.

In the wake of the recent (and absolutely ridiculous) story about DHS inspector general Charles Edwards and his litany of misdeeds, Shawn Musgrave, over at Muckrock, decided to file some FOIA requests for any emails between Edwards and Napolitano. In response, DHS gave a “no responsive records” answer, noting that (as many had reported), Napolitano didn’t use email.

However, as Musgrave points out, that’s not actually true. There are multiple examples of emails “sent” by Napolitano that have been previously released — it’s just that it’s clear they were actually sent via a DHS staffer, rather than Napolitano herself. This is known because of another FOIA request from Musgrave, concerning any emails about Napolitano’s resignation from DHS, which turned up (ta da!) an email sent by a (redacted) staffer on behalf of Napolitano: And, it turns out that this is not the only example of an email “from” Napolitano. Others have been discovered as well. So, that raises a serious question: when filing a FOIA request with DHS for Napolitano emails, shouldn’t the emails that were sent using her “signature” count, even if sent by a staffer? As Musgrave notes:

There are two critical issues at play here. First is the guesswork this kind of email-by-proxy requires. Since emails like these didn’t originate from an account assigned to Ms. Napolitano, watchdogs would have to skim through an indeterminate number of inboxes to ferret out misconduct by the Secretary.

But the spirit of the Freedom of Information Act and transparency also requires government officials to conduct a good faith search for documents responsive to a particular request. Since Napolitano’s email aversion is common knowledge, particularly within DHS staff, a good faith search for emails “from” the Secretary requires more effort than reiterating that Napolitano declined to set up an email account during her tenure.

I have appealed the adequacy of DHS FOIA staff’s search to that effect, and intend to continue pressing for release of documents that outline the extent of improper contact between Edwards and senior DHS officials.

Allowing this kind of thing to happen without pushback will present an easy blueprint for other government officials to avoid having their own emails easily FOIA’d, and that would be a big problem.

Filed Under: charles edwards, dhs, foia, homeland security, janet napolitano