Appeals court could complicate Clinton email litigation

Politico reports on CEI's appeal before judges regarding their FOIA request for records an agency head held on a private email account.  

The case before the appeals judges' Thursday involved a request from the conservative Competitive Enterprise Institute for records Holdren kept on a "" email account connected to the privately-run Woods Hole Research Center in Falmouth, Mass. The White House Office of Science and Technology Policy, which Holdren runs, rebuffed the request, saying his personal-account emails were beyond FOIA's reach.

Last March, Kessler dismissed CEI's lawsuit, holding that the agency was not improperly withholding records under FOIA if it did not have possession or control of those records. She relied, as the government did Thursday, on a 1980 Supreme Court case that held journalists could not use FOIA to obtain records Secretary of State Henry Kissinger deeded to the Library of Congress.

CEI attorney Hans Bader said an agency head, like Holdren, is treated as "an alter-ego of the agency" for legal purposes.Bader also said he doubted most employees, especially an agency head, would defy a request to produce emails from a personal account. He also noted that FOIA itself contains provisions to discipline employees who disregard that law. (The employee-punishment provisions have never been used.)

One issue lurking in the case background is the impact of a 2014 law that orders federal employees to copy all work-related emails in their personal accounts to an official account within 20 days. Some records at issue in the CEI case and all of those in the Clinton-related cases predate that law, but many legal experts contend employees had a legal duty to do that even before the law was passed.

Read the full article at Politico