Who is Richard Windsor, and what does his name mean for the access of government information about environmental issues?
As it turns out, the Richard Windsor at the center of an ongoing FOIA imbroglio in the Environmental Protection Agency (EPA) isn’t the ambitious woodsman on Lewis and Clark’s expedition. Rather, Richard Windsor is the alias assigned to an email account used by former EPA administrator Lisa Jackson to communicate with people from her EPA post. People who used the email address included Cass Sunstein, eventual leader of the White House's Office of Information and Regulatory Affairs, who called the private account Jackson’s “special email.” The emails going into and coming out of the Richard Windsor email account flew under the government records radar, going untouched by Federal Records Act mandates and FOIA requirements.
Since 2012, Jackson’s Richard Windsor email account has been the focus an ongoing FOIA battle waged by the Competitive Enterprise Institute (CEI), a politically conservative think tank who filed a lawsuit to obtain any emails in the Richard Windsor account containing the phrases: “climate,” “coal,” “endanger,” or “MACT,” an abbreviation for Maximum Achievable Control Technology Standards. In fact, as the House Oversight and Government Reform Committee prepared for its hearing on FOIA this week, the Richard Windsor emails were among the most cited examples of FOIA frustration, and in March, 2015, CEI prepared to file another lawsuit over the slow EPA’s “glacially slow” pace of fulfilling the email-related FOIA request.
If the facts in this Richard Windsor email case sound familiar, it may be because they are similar to those in the Hillary Clinton email conundrum where the retired Secretary of State used a private email address during her time in office, arguably sidestepping disclosure and preservation requirements for federal records, hiding information that should be available to the public and stored in the National Archives (NARA). Although in Clinton’s case, she did not make up an alias or use a “.gov” email address, many of the information transparency implications are the same, and the application of existing government rules are just as tenuous.
Like the Clinton emails revelation, the Richard Windsor email account has become more than a mere FOIA quandary and used for political leverage. CEI, as an organization, does not favor the EPA’s policies. The think tank refutes climate change and opposes environmental regulation. The think tank considers the EPA to be corrupt, calling the agency “America’s Own FIFA.” Chris Horner, the senior fellow at CEI who spearheaded the Richard Windsor FOIA request and subsequent litigation, authored the book “The Liberal War on Transparency."
Even after the EPA produced over 10,000 records and two Vaughn indices to justify withholding some records as confidential, CEI opposed the EPA’s motion for summary judgment. Judge James Boasberg of the D.C. District Court determined that the EPA provided sufficient FOIA transparency and wrote a rather sardonic opinion accusing CEI of making “broad claims of bureaucratic conspiracy” and “nitpicking” over certain aspects of the EPA’s FOIA response in order to keep its lawsuit alive.
Although based on the flurry of CEI rhetoric surrounding the case, and on Judge Boasberg’s eye-roll opinion, it would be easy to brush off Richard Windsor as mere political posturing, as an information professional focused on environmental information access, I have to wonder, what does the Richard Windsor case mean for information access?
One major thing that the FOIA email cases demonstrate is that times are changing for federal records collection and preservation. The Richard Windsor email FOIA case, like the Clinton email revelation, highlights the altered world of government transparency in the Internet age. A recent study confirms that Clinton and Jackson are not alone in using side emails as government executives. Transparency laws are gradually being amended to codify bans on private emails accounts and to mandate procedures for preserving electronic communications. By 2016, all federal agencies will be required to manage all of their emails in electronic formats in conjunction with the National Archives. In the meantime, there will be a learning curve for agency employees, all of whom likely use electronic communications in one form or another. Jackson and Clinton’s examples serve as critical notices to anyone producing government information – your work as a public servant will be made available to the public, no matter which email address it’s sent from.
Another important revelation of the FOIA email cases is the massive amounts of data collection that must be undertaken by the government to comply with transparency and records preservations laws in the Internet age. As the huge volumes of email and online communication become part of FOIA’s parameters, the FOIA process may become more like ediscovery, where an entire new specialty has developed around collecting and sifting through the multitudes of emails and Internet data necessary for the discovery process in most court cases. Government agencies must develop systems, not just for preserving email records, but also for sifting through them and making them publicly accessible in an efficient manner.
The administrative burden on federal agencies receiving these massive email requests is sizeable to agencies like the EPA that lack efficient budgets and staffs to carry out these large-scale FOIA tasks. Requests like CEI’s Richard Windsor query break down the EPA’s infrastructure, requiring the processing of tens of thousands of emails. According to an EPA employee, the Richard Windsor request had attorneys from the Office of the Executive Secretariat working full time for four months including weekends, without tending to any other business, leading to other requests being put on hold. In a time of EPA budget cuts, three attorneys from the Office of General Counsel, EPA’s chief legal advisors, also had to assist with the processing.
Because of the amount of work involved in these types of requests, CEI’s request has been called “badgering” and referred to as harassment. It seems that CEI may be aware that these types of FOIA requests stymie the agency. Horner admits that these requests are not mere information gathering, but also political attacks saying, “I’m simply working the corner across the street from the environmentalist or other, generally leftish pressure groups who have been far more active in this area for far longer. What I do is fill a void, flattering the other side with imitation.”
No matter whether the Richard Windsor FOIA request was made out of political spite, leading the EPA on an electronic digging expedition, government information transparency is key to government information access, and using a secret email account subverts the intent of the FOIA. As my colleague Doug Cox explained regarding Clinton’s personal email account, “While Clinton may have technical arguments for why she complied with each of these and the other rules that have been discussed in the news, the argument that Clinton complied with the letter and spirit of the law is unsustainable.”
As the First Amendment outlaws the censoring of unpopular speech, so does the FOIA outlaw the withholding of government information, regardless of content or purpose, so long as the information does not fall within one of the law’s exemptions. Despite the politically polarizing nature of Chris Horner’s FOIA request, the FOIA and the information access issues raised by the request are very pressing for all of us.
As CEI continues its FOIA campaign into private email accounts utilized by EPA administrators, no matter how strongly political counterparts and federal judges decry CEI’s broad, difficult-to-fill requests as “nitpicking” and “conspiracy theory”-driven, it is clear that we must create a more streamlined, efficient manner of electronic communication transparency so that we can more easily satisfy these FOIA requests and dedicate more time to dealing with the substantive issues of environmental policy and progress.