DOJ to Release Secret EPA E-Mails

Today, the Department of Justice is to produce the first of four monthly batches totaling 12,000 emails to and from the “secondary” email account of President Obama’s EPA administrator, Lisa Jackson. Rolling Stone hailed Jackson as “the most progressive” EPA chief ever. Today we begin to know her better as “Richard Windsor”, which is the false identity Jackson assumed for federal recordkeeping purposes. Here is why that matters.

During Christmas week, Jackson announced her resignation effective in January. The previous week DoJ had agreed in litigation to produce certain of her emails on a non-public account I discovered while writing “The Liberal War on Transparency: Confessions of a a Freedom of Information ‘Criminal’” (irony alert: it was Jackson who called my FOIA work “criminal”).

Specifically, I sought mail using one of four keywords relating to the administration’s controversial war on coal now being waged through the bureaucracy after cap-and-trade legislation failed in Congress.

“Secondary” accounts were initiated by former EPA chief Carol Browner -- particularly odd given Browner’s insistence that she wasn’t an emailer, after having her hard drive destroyed in violation of a federal court’s preservation order, but I digress. These accounts were so an administrator could use email but outside of her publicly known address.

I first learned of these accounts after stumbling upon a 2008 EPA memo to the National Archives Records Administrator (NARA), informing that body of EPA’s own discovery of the practice. EPA told NARA these accounts had been set on “auto-delete”. EPA also wrote, “The secondary e-mail accounts are configured so the account holder’s name appears in the ‘sent by’ field.”

Not Ms. Jackson’s. Instead, EPA created a fictitious employee in order to install a LotusNotes account for Richard Windsor on Jackson’s official computers.

EPA vowed to NARA it would avoid such record-keeping problems in the future. However many steps forward the Agency took, the Windsor move is a significant step back. This is because, whatever the intent behind creating a false identity for certain communications, the obvious effect is to undermine federal record-keeping and disclosure (“transparency”) requirements.

As the attorney who negotiated the disclosure agreement with Justice, in one of just several active similar lawsuits over federal Freedom of Information Act requests, I have found that Ms. Jackson frustrating federal record-keeping laws is part of a pattern making a mockery of the Obama administration’s promises to be “the most transparent administration ever.” 

Publicly, EPA dismisses Jackson’s false identity as a non-story, emphasizing that “Windsor” is “an internal account...to communicate with staff and other government officials.” Many of those communications are subject to production under the Freedom of Information Act, and all are covered by the Federal Records Act, laws designed to ensure taxpayers and historians can discern “what their government is up to” (U.S. Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)). 

A false identity has the obvious result of frustrating these requirements. For example, how would EPA ensure it properly searched and produced Windsor records in response to FOIA requests? The Windsor account was essentially a secret, consistent with the memo to NARA stating, “Few EPA staff members, usually only high-level senior staff, even know that these accounts exist”. Further, how would a taxpayer obtaining records from, say, the White House or Department of Energy properly assess that these were the EPA administrator’s communications? How would historians, journalists or future litigants know?

Did Jackson, as EPA now implies, avoid using the Windsor account to correspond with non-governmental parties like pressure groups or industry? If so, then EPA’s insistence that Jackson’s public account is too unwieldy to use begs the question of what account Jackson used for such dealings, and how it complies with transparency laws.

These are the questions EPA continues to avoid by defending the false identity as meaningless. It isn’t. The Agency vows it “has nothing to hide”. Then why is EPA working so hard to act like it does?

Presumably Richard Windsor’s emails and others we are presently in court seeking will help fill in such blanks. However, secrecy in the Obama administration is not limited to the EPA. In fact, as I reveal in detail in the book, the administration deploys a broad, deeply troubling array of tactics to hide what it’s up to.

For example, congressional investigators inform me that, when cutting deals for industry support of ObamaCare, then-White House deputy chief of staff Jim Messina used an AOL account. It is public record that Department of Energy officials used 14 separate private accounts to execute the loan guarantee program made infamous by Solyndra. 

The White House even arranged for a privately owned computer server for conducting discussions about the controversial United Nations Intergovernmental Panel on Climate Change (IPCC), presumably to keep those discussions the reach of FOIA requests. The House Science Committee and Competitive Enterprise Institute both continue to seek access to the documents stored there.

Additionally, the American Wind Energy Association was the Department of Energy’s “cutout”, or go-between, with the Center for American Progress and the Union of Concerned Scientists in efforts to discredit a team of Spanish economists’ “green jobs” study that showed a loss of more than two jobs for every “green job” created in President Obama’s erstwhile model. This, too, left collaboration with activists less likely to be discovered.

Transparency in government was long a Progressive goal, tracing its American roots even to Supreme Court Justice Louis Brandeis. The Court has held public access to government information as “vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” But now modern Progressives have turned transparency on its head. They seem to believe the institutions that required protections against abuse, now safely in the “proper” hands, no longer need those protections.

The evidence of the past four years, and particularly the past several months, strongly suggests otherwise.


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