Why We Need More Access to Bureaucrats' Emails, Not Less

The Freedom of Information Act is crucial for government accountability.


Tetra Images Tetra Images/Newscom
Tetra Images Tetra Images/Newscom

I've written more than 100 Freedom of Information Act (FOIA) requests over the past few years, as well as a newsletter on FOIA policy, so it caused me great pain to read the headline over at Vox on Tuesday: "Against Transparency: Government officials' email should be private, just like their phone calls."

Vox's Matt Yglesias writes that, in an age of casual email, the problem with making government officials' emails subject to public records by default "is that in addition to serving as a deterrent to misconduct, it serves as a deterrent to frankness and honesty."

The solution, Yglesias says, is to make emails off-limits to public record searches, much like phone calls.

"Government secrecy can be, and in some ways is, out of control," he writes. "But a private conversation to facilitate a frank exchange of ideas is not the same as a secret bombing campaign in Cambodia. We need to let public officials talk to each other—and to their professional contacts outside the government—in ways that are both honest and technologically modern."

Good point! If only someone in Congress had thought of it when they were crafting the Freedom of Information Act.

As it turns out there is already an exemption in the federal FOIA for exactly those kind of records. Exemption b(5) of the FOIA, known as the "deliberative process" exemption, was added so bureaucrats could have frank discussions of policy decisions outside of the public eye. Those concerns are also why Congress and many state legislatures are wholly exempt from public records requests.

And, as any frequent FOIA requester will tell you, exemption b(5) is also wildly abused by government officials to redact anything embarrassing or trivial they do not want disclosed. In fact, it's known among disappointed requesters as the "withhold it because you want to" exemption. In 2013, the Obama administration applied exemption b(5) to 13 percent of all the FOIA requests it processed that year.

Personally, I've received hundreds of completely redacted pages of communications about the Obama administration's contraception mandate and alleged Hatch Act violations by senior officials. I got the same results when I requested emails from New York Gov. Andrew Cuomo's office about the state's 2013 gun control law.

Part of the recently passed FOIA Improvement Act of 2016 included a 25-year limit on withholding such "predecisional" documents. In a FOIA lawsuit filed by the National Security Archive in 2012, the CIA successfully argued in court that a 30-year-old internal history of the Bay of Pigs invasion was "predecisional" and exempt from disclosure under exemption b(5).

So much for chilling effects.

But on a broader level, it's just a silly idea that access to public records through FOIA should be restricted because government officials will avoid disclosure anyway. It reflects an obliviousness to how vital these communications are to news investigations and how extraordinarily time-consuming and difficult it already is to get them.

As Associated Press editor Ted Bridis pointed out on Twitter, the AP only found out through a public records request of FAA phone transcripts that Ferguson police had instituted a no-fly zone over the town to specifically block news helicopters.

The reason New Jersey Gov. Chris Christie got into trouble for jamming up traffic on the George Washington Bridge as an act of political retribution was because reporters from the New Jersey Record obtained emails between his staff—the sort of communications Yglesias says should be secret—through about a dozen public records requests. (The damning "time for some traffic problems" email was actually leaked to The Record after the Christie administration erroneously told the newspaper there were no responsive documents to its request.)

Or how about the racist emails going around in the Ferguson police department? Or the racist emails that caused the Los Angeles County Sheriff to resign? Are those the sort of casual, everyday emails that should be off-limits to the public view? Michigan Gov. Rick Snyder voluntarily disclosed thousands of pages of emails from his office regarding the Flint water crisis, but those communications are normally exempt from state record law. Does that sound like a policy that should be extended to more government bodies?

There are innumerable other stories about regulatory capture, cronyism, and corruption that would never see the light of day if we accepted the argument that everyday emails aren't in the public interest, and what bureaucrats really need to make government more efficient is less oversight. For instance, here's an Arizona Republic story from Tuesday [emphasis added]:

Jerry McCoy, the chief of staff for Surprise Mayor Sharon Wolcott, resigned from his executive position on July 18 after signing an agreement that provided him continued paychecks totaling about $22,000 plus other benefits. He left his job the same day.

Two days later, the city's human resources department received a complaint about McCoy from another employee who believed McCoy purged a significant amount of city documents from file cabinets containing records from current and previous mayors and City Council members, according to public records obtained by The Arizona Republic.

The subsequent HR investigation found "sufficient evidence to prove" that McCoy, who held his job for more than two years, violated city policies regarding "misuse or destruction of public records."

But I'm sure we can trust federal bureaucrats to behave more responsibly once they don't have to worry about someone snooping on their emails.

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  1. Poor Matty, he just can’t get a break.

    For entertainment, check the abuse he gets on this twitter exchange.

  2. I work for a state agency in NC, and our e-mails are considered open records by state law. As a result, we can’t use e-mail for things like obtaining medical records or communicating directly with clients. So, we still get medical records by fax or mail rather than electronically, and we can only communicate with clients by e-mail if they agree that they understand the e-mails are not confidential. I’m fine with management-level folks having their e-mails subject to public records requests, but I think the cost in terms of poorer customer services and wasted resources (all that paper) is greater than any benefit when it comes to front-line workers like myself. I think the issue in NC is that they law was written back when everyone assumed e-mail would never really take over as a primary form of communication.

    1. Take the public nickel, take the openness in communication.

      Sorry, no openness for them, but not me.

      1. Yeah, yeah, I realize I can’t really complain about the bureaucracy since I chose this job (and chose a field that has very few private-sector jobs). But I used to work for Virginia’s equivalent agency, and we were able to e-mail medical records request and receive electronic records, and I was able to use e-mail as a primary form of communication with client’s who preferred that method (which many autistic folks do). Maybe someday I’ll go back to Virginia, but for now the lower cost-of-living keeps me here.

        1. Why does a state agency need private medical records? If they are genuinely private, why can’t the citizen get them and then email them to you?
          The problem is not (just) with the records laws and their openness or not, it’s the vast overreach of ‘privacy’ statutes where the private information does not belong to the individual whose information it is.

          Regardless, the solution to your pain is not to make your communications private. It’s to expand the control clients have over their own information.
          Everything done by every public employee, including but not restricted to, elected officials, needs to be on the record and freely available. Every. Single. Bit.
          The very phrase ‘official secrets’ is an abomination.

          1. If the client e-mailed them to me, the e-mail would still be public records. But yeah, the main reason we need the records is for bureaucratic requirements — mainly to ensure clients meet the unnecessarily-complex eligibility requirements of our program. But I do agree that more people should be allowed to keep their own copies of their medical records. I give clients copies of records from tests we sponsor anytime they ask. Some counselors have a problem with letting someone read their own psychological evaluation, but I’m of the opinion that people have a right to know what diagnoses they’ve been labeled with.

            1. We have a pretty broad public records law in Florida, but there are some narrow exemptions. Just because a communication is in email doesn’t make it *automatically* public, although the burden would be on us to show that it meets one of the exempt categories. Are you sure NC doesn’t have an exemption for medical records? Maybe your GC is just being absurdly risk-averse (like ours).

              I am all for state emails being public. It goes with the privilege of spending other people’s money. If I want to have a private conversation with somebody, I pick up the phone.

            2. Sounds like the solution is to add an FOIA exemption for medical records.

    2. I’m personally happy to have an exemption for truly personal communication. If it’s government business, tough luck.

      1. Speaking as a professor at a state-supported university (virtually no public universities in the US are funded primarily by state funds) I find I have to be quite careful in my emails to, for example, my wife, or to my friends arranging a lunch date, since as ‘public servants’ email is considered (at least by the FOIA-requesters) a ‘public record’. And no, using Gmail doesn’t count–that’s FOIA-able too.

        There’s something wrong with a system that makes any communications whatever a ‘public record’, no matter how personal or unrelated to something the ‘public’ has a right to be concerned about. We’re not talking about secret plans to install a dictatorship, but plans to meet for a drink after work. And, yes, I know the answer will be ‘if you have nothing to hide, you have nothing to worry about. I’ve heard that line before…

        1. I work for a private company not subject to records requests and I always email about private matters from my gmail account. I don’t understand why this is such an inconvenience.

        2. Jebus get a smart phone. Or is it now a requirement to be technologically challenged to work for the state? Work related? Use work resources! Not work related, use your own freaking resources! No public record problem, see! Was that fuckin hard!?

          And yup! : There is something wrong with a system that let you use work resources to set a lunch with your friends or your wife. I don’t dare to do it in the private sector, don’t do it in the public sector.

        3. I think your gmail issue only arises if you use it for both work and pleasure.

          If you use gmail for any work, then all your gmails are belong to us.

          But a separate gmail account with no work on it should be clear.


          1. If you are truly worried, set up a gmail account that autodeletes every mail after 30 days.

            It’s not obstruction if it is part of your routine document handling.

      2. truly personal communication would not be on a government computer, right?
        Anything that happens concerning a government agency/employee/official/appointee belongs to the public.
        In cases where there might be an actual need for security (not privacy/CYA-ness), the policy could that a redacted copy is made at the same time as the original, so the redaction is not based on “20-20 hide the whoopsie hindsight”. All such redaction should be subject to automatic review for concurrence by a second party. Then a FOI search would hit on the pre-redacted copy. The requester could then challenge the redaction if necessary.
        And as long as I have three wishes, I want a pony.

        1. Your pony is in there somewhere!

          1. It was a unicorn, but we redacted the horn.

    3. If transparency makes a job too difficult, then it’s not a job that government should be doing, aside from military operations.

      1. Good point, I suppose. I suspect that after all the bureaucratic costs are factored in, there is at most a very minor overall benefit to the services my agency provides (helping people with disabilities pursue employment). And we’re such a teeny tiny proportion of the overall budget (at both the state and federal levels) that we’re not a top priority in terms of improving efficiency.

        1. Do you really have fake-autistics trying to use your job placement services?

    4. Except there’s no reason you couldn’t redact Protected Health Information from any such records request.

      I suspect the main reason you aren’t allowed to use email for medical records is due to your agency not wanting the cost of trying to implement a HIPAA compliant email system.

  3. Yglesias can always be counted on to remind you of his existence through the overwhelming power of his stupidity.

    1. His twitter page reminds me of how punch-able his face is.

  4. Jerry McCoy, the chief of staff for Surprise Mayor Sharon Wolcott, resigned from his executive position on July 18 after signing an agreement that provided him continued paychecks totaling about $22,000 plus other benefits. … Two days later, the city’s human resources department received a complaint about McCoy from another employee who believed McCoy purged a significant amount of city documents from file cabinets containing records from current and previous mayors and City Council members

    “Surprise, surprise, surprise!”

    /Gomer Pyle

    Just curious. If the name of the town had been “Color”, would the article refer to “Mayor of Color Sharon Walcott”?

  5. That has to be a stupidity for clicks article on vox.
    *checks facebook*

  6. As the WSJ calls Vox, ‘the young adult website’. But, a, keep thinking you can make common ground with the Left.

    1. I don’t think the goal is “common ground” with the Left so much as peeling some of them away by making arguments that appeal to the way they think.

  7. I strongly suspect that this is a preemptive strike to keep Hillary’s records secret if she wins the election.

    If Trump wins, Yglesias will conveniently forget that he wrote this article and demand total transparency, including surveillance cameras in every room of the White House.

  8. You will see a marked increase in phone usage if emails are all archived and available under FOIA. There is no smoking gun for a verbal conversation.

  9. Allowing an exemption for the “deliberative process” sounds like having a cyber “smoke filled room”.
    The deliberative process should be such that there would be no problem with the public being aware of it.
    How else can we be as fully informed as possible of how the lawmakers, we are supposed to intelligently elect, come to their decisions?

  10. A random thought occurs regarding the idea that increasing the transparency of emails will direct sensitive conversations to unmonitored phone lines: if every call center in the private sector records all their calls for quality assurance, why can’t government bureaucrats be subject to the same oversight?

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