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CEI Court Victory has Implications for Agency Emails

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The DC Circuit court today ruled that agency records including “departmental emails on an account in another domain” must be searched or produced in response to Freedom of Information Act (FOIA) requests. In the FOIA case brought by the Competitive Enterprise Institute (CEI) against the White House Office of Science and Technology Policy (OSTP) over OSTP Director John Holdren’s use of non-official email accounts for work-related emails, the DC Circuit overturned a district court ruling, and remanded that case back to the district court for further proceedings.

“While today’s ruling is a major victory for government transparency, it’s stunning that it takes a court decision for federal employees to be held accountable to the law,” said Marlo Lewis, CEI senior fellow. “The ‘most transparent administration in history’ has proven over and over that it has no intention of actually letting the American public know what it is doing. Just think, if today’s ruling had gone the other way, the implication would be that all government business could be transacted on private email and be invisible to citizens, completely gutting FOIA – absurd! Director Holdren is not the first agency head to be found using private email for his government work, but as we continue our legal battle in this case, we seek for this unlawful behavior to come to an end.”

CEI originally requested in October 2013 policy emails that OSTP Director Holdren, kept on his private email account at his former employer, the environmental-pressure group Woods Hole Research Center. OSTP turned down the request, claiming that Holdren’s private account was outside its control and therefore wasn’t subject to FOIA. CEI subsequently sued, and today’s ruling is a result of an appeal of a District of Columbia District Court ruling.

Of note in today’s ruling, the court pointed out, “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 clarified, “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.”

Today’s ruling, as well as the recent news on former Secretary of State Hillary Clinton’s private email use, serve as a reminder that it is agencies that are accountable for deciding what is kept or deleted from work-related correspondence.

See more on CEI’s FOIA case against OSTP here.