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Eye on the EPA: Transparency Request #2, Inconsistent E-mail Practices and Policies
April 23, 2013

Lifting the Veil of Secrecy

Following the nomination hearing for Gina McCarthy to lead the U.S. Environmental Protection Agency (EPA), the EPW Republican Senators reiterated five concerns they have with the agency and the expected responses, in order to ensure that transparency is more than a buzzword. The Senators hope to restore public confidence that EPA will stop undermining public trust behind a veil of secrecy.

 

EPA's Inconsistent E-mail Practices and Policies

Transparency Request #2: Release exchanges in which private e-mail accounts were used to conduct official business

Thus far, EPA officials have responded to the Senators' request piece-by-piece, which demonstrates a necessary first-step for the Agency to move toward appropriate and consistent e-mail practices and policies.

The Committee has demonstrated that EPA officials routinely and repeatedly violate internal policy that forbids the use of non-official e-mail accounts to conduct official agency business.  This practice has serious consequences as such behavior increases the likelihood that the Agency and its employees violate the Federal Records Act and the Freedom of Information Act.  The medium used to communicate is inconsequential to these transparency statutes - if the content of the email qualifies as a federal record, then the email is a federal record and should be treated and preserved as such.  The law similarly applies to all communications regardless of whether the communication occurred on a government email account, a private account, in a text message or through instant messaging.  However, because EPA officials use their non-official email accounts to conduct agency business, EPA officials responsible for ensuring that all employees comply with the law experience much more difficulty ensuring such compliance.  Moreover, private email accounts do not have the same security features as government accounts, so the information is not necessarily protected if sent or received on a private account. 

 

EPA has been on notice that they are on the verge of federal records violations since 2008.  After reviewing EPA's records management practices in 2008, the GAO informed EPA that the Agency needed to develop clear and consistent guidance with regard to nongovernmental email use.[1]  Such a policy is necessary to ensure that any covered agency activity would still be properly preserved.  In response, EPA stated that it, "has not provided formal instructions to staff on the use of secondary accounts to conduct Agency business, rather, EPA has a clear and consistent policy framework against the use of nongovernmental e-mail systems for official EPA business.[2] This policy is contained in several documents; including briefings to high-level staff when they are hired,[3] email communications reminding employees to not use their private accounts to conduct agency business,[4] as well as the Agency's "Frequent Questions about E-Mail and Records" webpage.[5]

 

Yet, despite the law and EPA's policy against using private email, the Committee has demonstrated that high-level employees use their private email for work purposes, possibly to evade federal transparency laws.  The most flagrant example uncovered by the Committee was the practice of former Region 8 Administrator James B. Martin.[6]  When the Committee first questioned Martin on his use of his personal email account, EPA quickly responded with a denial:  "As detailed in public filings, the regional administrator does not use his personal mail account to conduct official business....That Mr. Martin responded to one email sent to his personal email account to confirm a meeting that appears on his official government calendar does not alter that fact."[7]

 

Contrary to EPA's defense of Mr. Martin's email practices, the Committee revealed that Mr. Martin regularly corresponded with individuals and groups outside EPA regarding agency business.  For example, Mr. Martin communicated with General Counsel of the Environmental Defense Fund, Vickie Patton about Agency activity.[8]  However, despite EPA's original denial, it appears that EPA officials had knowledge of Mr. Martin's use of personal email to conduct agency business.  On April 11, 2012, Mr. Martin forwarded Jose Lozano, EPA's Deputy Chief of Staff, an email containing a conversation between Martin and Alan Salazar, Chief Strategy Officer for Governor Hickenlooper, seeking to arrange an event for Administrator Jackson.[9]  Accordingly, EPA's failure to develop a comprehensive and effective policy on email use has created a means of conducting business where EPA employees can collude with their allies off line and avoid the transparency requirements of the law.

 

In addition to Mr. Martin, the Committee has also obtained evidence that Region 9 Administrator Jared Blumenfeld has used his private email account (@Comcast.net) for work purposes.[10]  Ranking Member Vitter and Chairman Issa sent Mr. Blumenfeld a letter asking for his cooperation in identifying federal records from his private account.[11]  Instead of cooperating with this request, EPA headquarters replied on Mr. Blumenfeld's behalf, once again indicating that there was no problem with Mr. Blumenfeld's behavior.[12]  In fact - when the media questioned EPA about Mr. Blumenfeld's email practices, EPA responded that, "There's nothing wrong with this."[13] 

 

Moreover, in review of the limited document production released pursuant to the Richard Windsor FOIA request, the Committee has discovered that Acting Administrator Perciasepe, Associate Administrator Arvin Ganeson and former Deputy General Counsel Tseming Yang have also used their private email for work purposes. 

 

Finally, it has recently come to the Committee's attention that EPA encourages the use of instant messaging via platforms like "Sametime Connect," "G-Chat," and, AOL Instant Messenger to communicate with individuals outside the agency.[14]    While EPA policy explicitly states that content on IM's can be considered federal records[15], the Committee is not aware of a single circumstance where EPA has released such a message in response to a FOIA or Congressional request.  While Acting Administrator Perciasepe has encourage the Inspector General to focus on potential problems relating to EPA's treatment of IM's[16], this merely acknowledges the problem, but provides no solution. 

 

Without the dedicated cooperation of EPA, it is impossible to determine the scope of these record keeping problems.  We know that EPA employees are using their private email accounts and IM's to conduct Agency business.  However, we don't know how this information is being captured or preserved.  Therefore, it is imperative that EPA recognize the consequences of such practices and that they must take corrective steps to ensure all Agency business in conducted in compliance with the letter of the law.

 

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[1] June 2008 GAO Report Federal Records: National Archives and Selected Agencies Need to Strengthen E-Mail Management, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=3e2f4fe8-ae16-4acb-957c-e5793b013437

[2] Id., appendix III (2008 GAO Report on EPA Records Management)

[3] 2009 Powerpoint EPA Records and ECMS Briefing: EPA Incoming Political Appointees, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=60afa4b3-3e5d-4e6f-b81e-64998f0d3c67

[4] NRMP Alert: Do Not Use Outside Email Systems to Conduct Agency Business, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=c3085cfe-781c-4175-b8c2-12d76c2cc88c

[5] EPA Website FAQ about E-Mail and Records, http://www.epa.gov/records/faqs/email.htm#q1

[6] January 29, 2013 Press Release: Vitter, Issa Investigate EPA's Transparency Problem, More Suspicious E-mail Accounts, http://www.epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&ContentRecord_id=872aba41-b894-3fb4-45da-a85dc30a87b3

[7] CJ Ciaramella, EPA Official Resigns, WASHINGTON FREE BEACON (Feb. 19, 2013, 3:30 PM), http://freebeacon.com/epa-official-resigns/.

[8] May 2012 Emails between Vicki Patton and Regional Administrator James Martin, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=8432c575-ed1a-4aab-b614-7e1623096a86

[9] April 2012 Emails between Jose Lozano and Regional Administrator James Martin, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=648376a0-cd4f-447a-88af-066e1b6ea989

[10] March 19, 2013, Press Release: Vitter, Issa Question EPA Region 9 Administrator on Personal Email Use, http://www.epw.senate.gov/public/index.cfm?FuseAction=Minority.PressReleases&ContentRecord_id=8311f916-0582-7f13-d6ff-ece347aed24e

[11] March 18, 2013, Letter from Sen. Vitter, Rep. Issa to Region 9 Administrator, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=162e293c-f079-442d-a0ca-a6884051a8d7

[12] April 9, 2013, EPA response to Sen. Vitter, Rep. Issa March 18, 2013 letter, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=b161e98c-a995-4efc-af1c-c4bd72418894

[13] Erica Martinson, EPA on Vitter, Issa email probe: This is how email works, Politico Pro (Mar. 19, 2013, 12:17:47 PM), https://www.politicopro.com/tipsheet/energy/?id=4130; see e.g. CJ Ciaramella, Windsor Knot Tightens Another EPA official using private email, The Washington Free Beacon (Feb. 26, 2013), http://freebeacon.com/windsor-knot-tightens/.

[14] 2010 EPA Powerpoint Web Collaboration Tools WWG 2010, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=9ff2bab4-4e26-4fe1-b9b7-bc7f2f8bc51e

[15] National Archives FAQ about Instant Messaging, http://www.archives.gov/records-mgmt/initiatives/im-faq.html

[16] April 2013 EPA Acting Administrator Perciasepe letter to EPA employees, http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=8ce8ca6f-58f2-45e2-9a2c-c1ba65ec88f1





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