The U.S. Court of Appeals for the D.C. Circuit could soon deliver a pivotal ruling in the case of Competitive Enterprise Institute v. Office of Science and Technology Policy. Our lawsuit involves a Freedom of Information Act (FOIA) request seeking work-related emails from the personal email account of Dr. John Holdren, who has directed the White House’s Office of Science and Technology Policy (OSTP) since early 2009. This case could set an important precedent affirming FOIA’s vitality in digital era, ensuring that agency employees who increasingly conduct official business using non-governmental accounts—or even private servers—cannot evade the scrutiny of journalists and watchdog groups.
CEI filed this FOIA request in October 2013, asking the agency for emails sent to or from Holdren’s non-governmental email account relating to his official business as OSTP’s chief. Our request specifically asked for work-related emails in Holdren’s Woods Hole Research Center account, [email protected], where he worked before President Obama tapped him to head OSTP. Even after joining the White House, Holdren kept using his private email account to correspond with other administration officials, as revealed by documents produced in response to a different CEI FOIA request involving the “Richard Windsor” alias used to conduct official business by former EPA Administrator Lisa Jackson.
Instead of searching Holdren’s private account for responsive documents, however, OSTP initially claimed we had requested records that were “beyond the reach of FOIA.” After we challenged this decision, OSTP eventually gave us emails from Holdren’s official OSTP account to or from his private account—but it did not search his private account as we had requested.
In July 2014, CEI sued OSTP in the District Court for the District of Columbia, arguing that the agency had unlawfully withheld agency records in violation of FOIA by refusing to produce any of Holdren’s work-related emails from his private account. In March 2015, however, the court dismissed our lawsuit, concluding that OSTP had not “withheld” the emails we sought from Holdren’s non-governmental email account, because the agency supposedly did not control or possess them.
We appealed the court’s ruling to the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument on January 14, 2016. My colleague Hans Bader, a CEI senior attorney, argued the case on our behalf. Also arguing for our position was Katie Townsend, the litigation director of the Reporters Committee for Freedom of the Press—which filed an amicus brief in the case on behalf of 26 media organizations, including the Associated Press, News Corporation, and The New York Times Company. An audio recording of the hearing is available here.
CEI and the media organizations urged the D.C. Circuit to reverse the lower court’s ruling and hold that the head of a federal agency cannot evade FOIA simply by conducting official business on a non-governmental email account. Assuming Holdren’s private account contains emails relating to agency business, OSTP must produce responsive records from this account in the same way as it would if an agency employee stored some work-related paper files in his home office. To satisfy our FOIA request, OSTP could simply ask Dr. Holdren to log in to his [email protected] email account—which he can presumably access from his office computer—and forward his work-related emails to his official account.
The agency claims that it has no obligation under FOIA to attempt to produce such records, pointing to a 1980 Supreme Court case, Kissinger v. Reporters Committee for Freedom of the Press, which involved FOIA requests seeking work-related papers of Dr. Henry Kissinger during his tenure as U.S. Secretary of State. In that case, the Court held that the Department of State had not “withheld” Kissinger’s papers because he had deeded them to the Library of Congress—which is exempt from FOIA—before the FOIA requests were made. The Court also held that FOIA does not require an agency to sue a third party, such as the Library of Congress, to retrieve records the agency can no longer access.
As we explained to the D.C. Circuit, however, Holdren is the current head of OSTP—in other words, its alter ego—and he still controls the emails stored in his personal account, as far as we know. Our FOIA request, therefore, is very different from the requests involving Secretary Kissinger’s papers, which the State Department and Kissinger had relinquished control over before they were sought under FOIA.
Several journalists attended oral argument on Thursday. Josh Gerstein, a senior White House reporter at POLITICO, reported that the D.C. Circuit “appears poised” to “overturn” the district court’s ruling in our case, citing the questions posed by the court to the Department of Justice attorney who argued on OSTP’s behalf. And the Associated Press reported that the court “seems likely to rule that work-related emails on a private account used by the White House's top science adviser are subject to the Freedom of Information Act.”