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Court Rejects Government Transparency Loophole Manufactured by Obama Administration

Do federal agencies have the right to shield their records from the Freedom of Information Act (FOIA) just by transmitting work-related documents via private email? That would seem absurd on the face of it. The DC Circuit Court of Appeals ruled today that agencies have no such right. The Court held that “departmental emails on an account in another domain” such as a private email server must be searched or provided in response to FOIA requests.

The Court’s ruling is a victory for accountable government. It puts agencies on notice that they cannot evade FOIA—or, worse, turn FOIA into a dead letter—just by placing public records in private spaces.

Background

Detailed background on the case, CEI v. White House Office of Science and Technology Policy, is available here. I've provided a quick overview below.

In October 2013, the Competitive Enterprise Institute (CEI) filed a FOIA request for work-related emails that John Holdren, Director of the White House Office of Science and Technology Policy (OSTP), kept on his private email account at his former employer, the environmental-pressure group Woods Hole Research Center. OSTP rejected the request, claiming Holdren’s private account was outside its control and therefore wasn’t subject to FOIA.

CEI filed a lawsuit in May 2014 to force OSTP to produce the emails, arguing that agency use of non-official accounts frustrates federal open-government laws, undermines government accountability, and thwarts congressional oversight efforts.

In March 2015, the D.C. District Court upheld the agency’s position, ruling that Woods Hole, not OSTP, controlled Holdren’s  private email account, and that FOIA applied only to records controlled by the agency.

CEI challenged the ruling in August 2015, arguing that agency documents do not have to be located on agency property or in official agency record-keeping systems to be subject to FOIA, or for such documents to be improperly withheld by the agency.

The Reporters Committee for Freedom of the Press filed an amicus brief supporting CEI’s lawsuit. The brief stated: “Given the increasing use of personal emails by government employees, access to such email when it concerns public business is crucial if the public is to be kept informed about what their government is up to.”

Today’s Decision

The Court of Appeals overturned the lower court’s ruling. The Court did not decide whether any of Holdren’s emails were agency records responsive to CEI’s request. But it did reject the lower court’s opinion that the emails are not public records and not searchable because they are maintained on a private email server. The Court explained:

“If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

Another section of the ruling shot down OSTP’s attempt to claim that Holdren was simply acting as a private citizen when he sent emails on his private account:

“In other words, an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency. If the agency head controls what would otherwise be an agency record, then it is still an agency record and still must be searched or produced. The agency’s claim before us simply makes little sense. That argument relies on the proposition that the emails in question are under the control of a private entity, not the government.”

The decision has a clear implication for the Clinton email scandal. It is the agency, not the agency head or any other employee, that is responsible for determining which emails on private servers are work-related and, thus, should be preserved. Unfortunately, by Secretary Clinton's own admission, she deleted tens of thousands of emails without allowing agency FOIA officers to review them.

While today’s ruling is a victory for transparency, it’s stunning that it takes a court decision to close a loophole that did not exist in the first place. Imagine if the ruling had gone the other way and the Supreme Court subsequently upheld it. Agencies would then be free to conduct all government business on private email—and exempt all of it from FOIA.

That would turn FOIA into a dead letter. The public’s ability to ferret out waste, fraud, and abuse in federal agencies would be drastically diminished. Congressional intent would be utterly subverted.

Why would the most transparent administration in history seek a ruling that would potentially nullify America’s premier open-government law? I can think of three possible reasons.

(1) They know not what they do. Unlikely. (2) They are contemptuous of constraints on government power. Likely. (3) The records responsive to CEI’s request contain evidence of impropriety or worse. Not inconceivable and not inconsistent with reason No. 2.