White House Office of Science and Technology Policy Director John Holdren or somebody on his staff would have been well-advised to heed Sir Walter Scott's poetic warning: “What a tangled web we weave when first we practice to deceive.” As a result, the Competitive Enterprise Institute filed suit in a federal court Monday claiming Holdren violated federal law and regulation by doing something he specifically advised employees not to do. That something was using a private email account to conduct official government business. Holdren used the account he had held in his prior position as director of the Woods Hole Research Center, a prominent environmental advocacy group.
As with so much else on the Freedom of Information and government transparency fronts in recent years, CEI's suit came about as a result of something the conservative think tank's lawyers discovered in materials they received from the Environmental Protection Agency in the Richard Windsor case. “Richard Windsor” was the alias used by former EPA Director Lisa Jackson in a secret government email account and her personal email to coordinate official business with the agency's activist allies in the environmental movement.
References to the illegal Holdren email account were inadvertently included in a Vaughn index prepared by EPA for CEI. Such an index describes for a FOIA requestor documents the government is withholding and redactions made in documents that are being released.
When CEI found the reference, the think tank filed a FOIA seeking copies of all Holdren correspondence on official government business going to and from the illegal account. The response from OSTP was initially to deny CEI’s request because the records were possessed by Woods Hole and thus allegedly beyond the reach of the FOIA.
In its suit Monday, CEI pointed out that “OSTP and OSTP Director Holdren are required by law and regulation to conduct all work-related correspondence on official accounts. When employees create or receive work-related correspondence on non-official accounts, this correspondence is presumptively an agency record but regardless must be provided to the employee’s agency.” In other words, Holdren was obligated to copy his official business correspondence on the private email account to his agency’s FOIA officer for federal record-keeping purposes.
Holdren knew this because in a May 10, 2010, memo to OSTP employees he said: “In the course of responding to the recent FOIA request, OSTP learned that an employee had, in a number of instances, inadvertently failed [to] forward to his OSTP email account work-related emails received on his personal account. The employee has since taken corrective action by forwarding these additional emails from his personal account to his OSTP account so that all of the work-related emails are properly preserved in his OSTP account.”
If OSTP was correct in telling CEI that it had no control over the requested Holdren emails on the Woods Hole account, then it appears Holdren violated federal law, regulation and his own memo on federal record-keeping. If Holdren did, however, enable OSTP to archive those emails, somebody else has some explaining to do in federal court.