Lawmaker questions White House official's use of Gmail

Despite concern, Issa did not call for prohibiting White House from using social network applications. Scott J. Ferrell/Newscom

A House Republican is questioning the legality of a White House official's reported use of Web-based e-mail to communicate with lobbyists at Google and high-ranking White House officials.

Rep. Darrell Issa, R-Calif., the ranking member of the House Oversight and Government Reform Committee, sent a letter on April 8 to Andrew McLaughlin, the White House deputy chief technology officer for Internet policy, asking McLaughlin to explain the allegations.

According to images posted on the Internet by some media outlets, a list of McLaughlin's contacts indicated he used his Gmail account to communicate with executives at Google, where McLaughlin served as head of global public policy and government affairs before joining the Obama administration. The list also showed he corresponded with Aneesh Chopra, the White House chief technology officer, and Katie Stanton, another Google veteran who now works at the State Department.

Electronic correspondence written or received by White House officials can be subject to retention under the 1978 Presidential Records Act. Issa said he is concerned that the use of personal Webmail increases the chances that presidential documents will be discarded, if the official using the private account relies on his own judgment to determine whether the e-mail messages fit the definition of a record.

"Gmail users on the president's staff run the risk of incorrectly classifying their e-mails as nonrecords under the act," Issa stated. "The fact that you sought to communicate privately with a select group of individuals, many of whom possess significant influence in industry and government, with your Gmail account raises the specter that you were attempting to circumvent the laws associated with openness and transparency."

In March, Issa was part of a bipartisan group that launched a congressional transparency caucus .

White House staffers cannot access Web-based personal e-mail accounts such as Gmail because the presidential office's network blocks such applications, according to a Jan. 15 letter that Brook Colangelo, chief information officer at the White House, wrote to Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive. The letter, which illuminated the White House's plans for e-mail retention, was released pursuant to legal action taken by CREW and the Archive, an independent organization that works to disclose declassified documents through the Freedom of Information Act.

Issa's accusations are reminiscent of concerns about lost e-mail records during President George W. Bush's term, when administration officials used e-mail accounts maintained by the Republican National Committee. The committee's system periodically deleted e-mails from its servers, and the Bush White House could not find official messages sent and received during hundreds of days between 2003 and 2005, according to congressional investigations.

Issa did not call for prohibiting White House officials from using social network applications, including Google Buzz, the platform that reportedly leaked McLaughlin's e-mail list. "Social networking platforms, such as Google Buzz, present tremendous opportunity for increasing public outreach and openness in government," Issa wrote. "At the same time, these innovative platforms create new challenges for document retention and transparency."

Officials in the White House Office of Science Technology and Policy said they had not received Issa's letter and could not comment on the lawmaker's assertions.

Issa's letter asks that McLaughlin answer several questions by April 22 for the House Oversight and Government Reform Committee regarding the White House's use of social media. Key questions include:

--What is OSTP's policy for ensuring all messages sent or received by White House staff through private, nongovernmental e-mail are preserved according to law?

--What is OSTP's policy for retaining information posted on social networking platforms such as Twitter, Google Buzz or Facebook?

--What is the procedure for ensuring all e-mail and social networking messages are properly categorized as presidential or nonpresidential records?

--Who decides whether an e-mail is categorized as a presidential record?

Anne Weismann, CREW's chief counsel, said she sent a letter on Monday to counsel at the Justice Department that raises similar concerns. Her letter notes that as part of the settlement with the White House, the administration promised it would put in place safeguards to properly retain e-mails.

"Mr. McLaughlin's use of his Gmail account appears to conflict directly with this representation and raises serious questions about the ability of the [Executive Office of the President] network to block external e-mail services and the extent to which the EOP actually is capturing and preserving all e-mails as required by law," Weismann wrote. She asked Justice to explain the facts regarding McLaughlin's use of Gmail.

"To the extent that McLaughlin is sending e-mails to Aneesh Chopra on his Gmail account, that's a huge problem," because Chopra directly advises the president, Weismann said in an interview. The e-mails McLaughlin sent could fall under the retention rules of the 1950 Federal Records Act, rather than the Presidential Records Act, if he is not considered Obama's immediate staff or does not advise the president. But Gmail messages Chopra received from McLaughlin would be considered presidential records.

Separately, the nonpartisan group Consumer Watchdog filed a FOIA request on April 1 seeking copies of the e-mails between McLaughlin and Google officials. The organization had opposed McLaughlin's appointment to the post of deputy CTO, saying the selection contradicted the administration's policies on stopping the so-called revolving door between the private sector and government. Rick Weiss, OSTP assistant director for strategic communications and senior policy analyst, said on Monday that the office is processing that request in accordance with the act.

Officials at the National Security Archive said the White House deserves credit for installing an e-mail archiving system, revealing the details of its preservation plan and identifying gaps in the Bush administration's procedures.

Thomas S. Blanton, director of the Archive, said he suspects McLaughlin was likely using a personal handheld device rather than a White House-issued computer or application.

He is troubled, however, if the e-mails contain information about White House activities. "If he is carrying out government business in those Gmails, yes, that's a violation of the records laws if the messages are not saved," Blanton said.

Blanton added he regrets that Republican lawmakers did not exercise more oversight during the last administration. "I sure wish Rep. Issa had been so inquiring and on the case in 2007 when we brought our lawsuit, or in 2008 when we couldn't get any answers from the Bush White House about how many messages were missing," he said. "I'm not taking a partisan position here. We have had to sue every president from Ronald Reagan to Barack Obama to uphold this principle that e-mails are records and have to be preserved. Just to give you a sense of the scale, only about a half million e-mail messages survived from the Reagan and Bush 1 White House staffs, about 32 million from Clinton, and an estimated 220 million from George W. Bush."