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Jose Luiz de Oliveira, attorney for Jose Dirceu, chief of staff for former Brazilian President Luiz Inacio Lula da Silva, holds his mobile phone with an email from Dirceu, during the "mensalao" trial at the Supreme Court in Brasilia October 4, 2012. The email from Dirceu begins, "Dou a mao a palmatoria, mas vamos hoje para o merito...", meaning "I am ready to have my hand slapped, but today we Jose Luiz de Oliveira, attorney for Jose Dirceu, chief of staff for former Brazilian President Luiz Inacio Lula da Silva, holds his mobile phone with an email from Dirceu, during the "mensalao" trial at the Supreme Court in Brasilia October 4, 2012. The email from Dirceu begins, "Dou a mao a palmatoria, mas vamos hoje para o merito...", meaning "I am ready to have my hand slapped, but today we'll see about merits..." The rapporteur Joaquim Barbosa of the landmark case involving a corruption scandal that rattled Lula's government seven years earlier, is expected to convict Dirceu, the highest profile figure in the trial. REUTERS/Ueslei Marcelino (BRAZIL - Tags: POLITICS CRIME LAW) - RTR38STL  

DC Court Rules Officials Must Turn Over Personal Emails In FOIA Requests

Giuseppe Macri
Tech Editor

The D.C. Superior Court has ruled that city officials engaging in business on personal email accounts to circumvent government transparency must surrender those emails in response to Freedom of Information Act (FOIA) requests.

According to The Washington City Paper, D.C. residents suspicious over Commissioner Dianne Barnes’ support for the McMillan Sand Filtration site in Ward 5 wanted a closer look at Barnes’ communications, and filed multiple FOIA requests to do so.

Judge Stewart Nash rejected the argument by the D.C. Attorney General’s office that personal emails aren’t subject to FOIA requests. The office asked the court to follow federal government guidelines in deciding the case, and rule that emails ”maintained on a non-governmental e-mail account, [do] not qualify as agency records subject to production under FOIA.”

The request runs counter to the growing trend in state governments to mandate public employees only conduct business on their official accounts, or subject their personal accounts to public review.

“The flaw in the District’s reasoning is that, in defining what documents are subject to disclosure, the [D.C. FOIA] statute is not equivalent to the federal FOIA statute,” Nash wrote in the July decision, pointing out that while the federal law cites “agency records,” D.C. references “public records,” including “information stored in an electronic format.”

The judge went on to dismantle the AG’s second argument, which asserted that Barnes is an individual, and not a public body. Nash said that to allow such a definition would force the court to ignore Barnes’ public appointment.

“The mere possibility that such e-mails might exist in Ms. Barnes’s personal account would be sufficient for this Court to [order release of the records],” Nash wrote. “It is worth observing, however, that we are not dealing in mere possibilities.”

“I would have thought that the substance of Judge Nash’s decision was already part of the D.C. rules and regulations about the use of email, but either it is not or it’s not enforced,” Kirby Vining, a member of the group responsible for filing the FOIA, said. “Either way, I hope this ruling improves the transparency of our government.”

Previous high profile cases of city officials masking public communications in private email include recently retired New York City Mayor Michael Bloomberg, who used an account from his company to avoid disclosing communications in FOIA requests, according to techdirt.

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