Since before the advent of the Internet, federal employees have been assigned email accounts on which to perform official business. These are the legally required accounts to use, establishing record of how government wields its authority and spends our money, preserved for ultimate management by the National Archives. If on occasion they must a different account, they must copy the government one. In the event any employee destroys any such records, they are violating the federal criminal code.
In a new book, The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal”, I set out to expose an epidemic of troubling practices by the Obama administration regarding transparency, including moving much of the federal government to Gmail, AOL, even private computers and servers. These practices hide what administration appointees and sympathetic career activists in government least want the public to see part of the historical record, or subject to requests under the Freedom of Information Act (“FOIA”).
For example, then-White House deputy chief of staff and current Obama campaign manager Jim Messina went off-line, as far as the law is concerned, turning to an AOL account to orchestrate the deal whereby drug companies received $4 billion under Obamacare, and agreed to buy $150 million in ads and lobby for the bill’s enactment.
Then there was the head of the Department of Energy’s Loan Guarantee Program made infamous by Solyndra. He and 14 colleagues took to private accounts to execute that expensive boondoggle rewarding political allies and producing little of value.
The Supreme Court wrote that transparency laws, particularly FOIA, are to ensure the public knows “what their government is up to." Now that liberals control the institutions that they warned must be subject to scrutiny for fear of abuse, it is transparency that apparently poses the threat. The Obama administration is sinking to desperate depths to fend off this horror of accountability.
A lawsuit two colleagues and I just filed, centered on a memo I reveal for the fist time in The Liberal War on Transparency. The memo’s star is former Obama “energy and environment czar” Carol Browner, who had toiled for eight years as the controversial head of Bill Clinton’s Environmental Protection Agency. Before that she worked for Al Gore.
Browner was known for working closely with “green” groups, which she also advised in between her stints as an in-house activist in government. This led Mark Levin’s Landmark Legal Foundation to seek Browner’s emails. An EPA stonewall led to litigation. Amid this, in the waning days of the Clinton administration, Browner ordered her computer hard drive and backup tapes erased.
That should be a problem for Browner, trained as a lawyer. But the records also were subject to a federal court “preservation” order. Apres le destruction, Ms. Browner pled ignorance, stating that, well, she didn’t use her computer for email. It’s just that her son played video games on her computer and she wanted it to be properly formatted for the incoming Bush administration. Really.
But my findings, several years later, makes this suspect argument even more questionable. Writing The Liberal War on Transparency, I scoured deathless Government Accountability Office (GAO) reports on the subject of transparency, as practiced. One of these mentioned an EPA memo to the National Archives Records Administrator, reporting (as is required) some problems EPA had discovered with its maintenance of federal records.
I obtained the actual memo via FOIA. It states that, under Browner, EPA began assigning its administrator a “secondary” email account. It seemed that an administrator would have difficulty being limited to her public email account, which would get so clogged with pesky taxpayer mail.
Ms. Browner apparently forgot to tell EPA’s techies that she wasn’t going to use email. In fact, she may have forgotten, herself, as the memo says she designed this account by providing a word known only to her for the address. It also indicates, more in sorrow than anger, that when established the account was set for auto-delete, which EPA only discovered in 2008. The Agency laments to National Archives that it is unable to reconstruct Browner’s usage (if also indicating it actually just didn’t try very hard).
The memo also deadpans, “Few EPA staff members, usually only high-level senior staff, even know that these accounts exist.” The court certainly didn't, though I suspect that all of this would have been of interest, back in the day. But the EPA resignedly noted that, since Browner “reportedly” didn’t use email, there's probably nothing to reconstruct anyway.
Neither the effort nor the claim are overly persuasive. And no doubt it is the sort of “old news” that is not worth our time now, in this “most transparent administration ever.” Except that it is also emblematic of what I have discovered is a near-obsession of the same administration Browner later served, somewhat notoriously on this front, to avoid creating or allowing access to a record of what they’re up to.
Tricks include not just using private email accounts and private computer servers to host official, controversial discussions free from prying eyes. I even have an affidavit attesting to a clever system established by one activist agency to view its emails remotely on a non-official computer, to which they are denying the government access to inspect it, but whose use erases any trace of the records back on government servers.
This is outrageous. And it seems to be the rule, not an exception. The administration is convinced that they had better hide what they’re up to. Which is why I dedicate the last chapter of my book to laying out how to ask for information,what authorities to cite, the tricks to anticipate and how to defeat them. Using FOIA we can, ultimately, expose them.
Christopher C. Horner is a Washington, DC attorney and author of The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” (Threshold Editions).
Watch clip of Christopher Horner discussing government transparency with the "Real News From TheBlaze" panel last week.