I decided to make this a sticky top post for a day or two – it needs wide circulation. New posts will appear below this one. – Anthony

Playing email hidey-ho in Hansenland to circumvent FOI laws

Guest post by Chris Horner

That political appointees and career activists in government would use private computers is in keeping with tactics I have uncovered as being epidemic in government, and particularly the current administration, and which I detail in The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” released this week.

These tactics range from the widespread use of private emails, hiding meetings with lobbyists, using “handles” and lobby groups as “cutouts” or go-betweens with pressure groups with whom the administration doesn’t want a paper trail. I even detail the White House arranging for a digital equivalent of a “safe house”, a privately owned and managed computer server on which to quietly conduct discussions about the IPCC presumably away from the taxpayers’ prying eyes.

But I also have an affidavit admitting to an elaborate system established by one activist agency — NASA’s Goddard Institute for Space Studies (GISS) — to view its emails remotely on a non-official computer, purchased with taxpayer money and used for the taxpayer’s business but access to which is being denied the government for inspection, whose use erases any trace of the records back on government servers.

This was provided me by NASA in an ongoing FOIA lawsuit we filed at the Competitive Enterprise Institute to obtain records of Gavin Schmidt, a GISS scientist who was running a third-party activist website promoting an ideological agenda on taxpayer time — at least if you believe the time-stamps, which were then “disappeared” after we pointed this out to NASA. But which we captured nonetheless.

The administration attested to this in federal court in order to defend their failure to provide certain emails to and from Schmidt’s email accounts relating to this activity. Their claim is that, because the emails were written or accessed on this unofficial computer, their system is such that the official emails are beyond the administration’s reach. In fact, the government’s copies are destroyed.

This is their defense.

The affidavit, by GISS’s Associate Chief Larry D. Travis, attests in pertinent part (emphasis added):

Dr. Schmidt uses two separate computers on which he conducts his work for NASA. . . . One computer Dr. Schmidt uses is a laptop computer that is owned by NASA. . . . The other computer is a desktop computer owned by Columbia University. Dr. Schmidt purchased this computer with National Science Foundation grant monies he received while he was an employee of Columbia University, prior to his becoming a civil servant with [NASA]; . . . [T]he [Space Station Program or SSP] contract providing IT support to GISS covers service for this computer. Nevertheless, Dr. Schmidt maintains this computer; SSP does not regularly service Dr. Schmidt’s computer and no SSP contractor has administrative privileges on the computer. Dr. Schmidt’s email correspondence is stored on his Columbia desktop computer [NB: that’s the private one, paid for not by Schmidt but by the taxpayer, to which he does not allow NASA access]. Dr. Schmidt accesses his Columbia University email via an Internet browser on the computer. Dr. Schmidt does not download his Columbia email messages to his computer; rather, they are located on a remote Columbia mail server.

NASA’s boast is that official records can be and are accessed by private computers, which not only corrupts the agency’s ability to properly comply with FOIA, it erodes the agency’s record retention and preservation. Elsewhere in the affidavit NASA states that the computer Schmidt uses is (emphases added):

a desktop . . . which Dr. Schmidt uses to send and receive all of his email from the @giss.nasa.gov, @nasa.gov, @columbia.edu, and @ realclimate.org domains. See Travis Decl. ¶ 18. Dr. Schmidt has never given administrative information technology (“IT”) privileges for either computer to the IT support services contractor that serves Agency personnel. See id. Thus, the email sought here is relayed to and resides on a computer that the Agency does not own, to which the Agency has no right of access, and for which no Agency official or contractor has administrative privileges. Moreover, there is no central mechanism by which GISS IT personnel can obtain access remotely to email sent to or received by a GISS email user; instead, the only way to reach such email would be via directly accessing the hard drive of the computer on which the user accessed his or her GISS email. See id. at ¶ 12b.

Which hard drive, you will note, is on a computer to which the government (taxpayer) has no access but for which the government (taxpayer paid). And pays to service. Even if it isn’t permitted to. Had this been the government computer, well, then email traces — in the event a record is destroyed, which we know that would never happen, there are laws….stay tuned — could be reconstructed.

But GISS is using private computers, it seems, for this public service, denying the public access to the legally required record of its activities.

NASA might explain how it is not hereby knowingly sanctioning a corruption of responsibilities to create, retain, and preserve documents, both for the Federal Records Act and for FOIA. This ain’t rocket science. But we do know it is with NASA’s sanction.

However, as Dr. Travis explains, even with respect to the emails from the @giss.nasa.gov and @nasa.gov domains, these have not been integrated into an agency record system or file.

Once a[n agency] employee accesses his or her [agency] email via his or her personal computer, those emails are no longer located on any server at [the agency]; in other words, the act of accessing a specific email deletes that email from the ‘spool’ on the server. [The agency] does not currently have (nor has it had in the past) a centralized backup of [agency] email traffic.” Id. at ¶ 12b. Moreover, even if the Agency did have a centralized backup of emails from the @giss.nasa. gov or @nasa.gov domains, emails sent or received by Dr. Schmidt pertaining to his work on the RealClimate blog would not be integrated into an Agency records system or file. . . .

Traces of the records are only on the computer the employee uses to access them. Which, at great pains, is not a government computer or one to which the government is being permitted access.

In this affidavit, NASA’s point was that its own system has gotten so far out of their control that an entire class of records cannot possibly be deemed “agency records” and so they have no obligation to search for or release them because the truth is while they may relate to official business, well, their employee won’t let them see them. And as is inherent in the system, the approved process destroys the government’s copies.

One could not hope to find a more explicit acknowledgment—or, more accurately, series of admissions, enthusiastically volunteered in an effort to get out of one frying pan (producing emails the employee wants to keep to himself) into an apparently bigger fire—that employees use unofficial computers for official duties and keep the records accessed on these computers away from the prying taxpayer eyes, skirting FOIA and, it seems other laws. They even use them to access official email accounts in a way that destroys the record.

As we have already been forced to argue to the Obama White House regarding the IPCC “safe house”, and have already filed an action to argue in court, conducting public business on private accounts or computers doesn’t make the business, and therefore the records, any less public. This particular example is simply an extreme case of flaunting disregard for this principle, particularly given NASA’s brazenness of sanctioning it and invoking the abusive practices as an expedient excuse to not turn over records produced on taxpayer time and resources.

Christopher C. Horner is a Washington, DC attorney and author of the newly released The Liberal War on Transparency: Confessions of a Freedom of Information “Criminal” (Threshold Editions).

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