Hidden Government Emails at the Epicenter of FOIA Lawsuit


In a lawsuit involving more hidden correspondence by government officials, the Competitive Enterprise Institute (CEI) on Monday filed the opening brief in its appeal of a court ruling that put the personal email account of the White House top science advisor, John Holdren, off-limits to the Freedom of Information Act (FOIA).

“There are a growing number of scandals concerning the use of private email accounts by top Obama administration officials,” said Sam Kazman, CEI general counsel. “The court ruling that we are appealing will only add to those scandals, because it legitimizes private email accounts as way to evade FOIA. While President Obama claims his administration is the most transparent in history, his officers seem to confuse being transparent with being invisible.”

CEI argues that FOIA applies to the work-related records of agency employees regardless of where they are stored.  Many agencies routinely instruct their staff to preserve any such documents that they might have on their personal email accounts.  In CEI’s case, however, John Holdren, the head of the White House Office of Science and Technology Policy (OSTP) either missed the memo or refused to issue it.

In October, 2013, CEI filed a FOIA request for policy-related emails that Holdren kept on his private email account. OSTP turned down the request, claiming that Holdren’s private account was outside its control and therefore wasn’t subject to FOIA.  In a March 3, 2015 ruling, U.S. district court judge Gladys Kessler upheld the agency’s argument. She ruled that FOIA applied only to agency records controlled by the agency, and that Holdren’s private email account was off-limits.  CEI is now appealing this ruling.

CEI is also involved in a second FOIA lawsuit against OSTP, seeking documents related to OSTP’s 2014 video, The Polar Vortex Explained in Two Minutes, which claimed that global warming contributed to that winter’s record-setting cold temperatures.  CEI petitioned OSTP to correct the video, given the growing number of studies that refuted it.  But the agency argued that it was exempt from the federal Information Quality Act video because it represented Holdren’s “personal opinion” even though it was produced by the agency.

As described by the government’s own website, FOIA.gov: “The Freedom of Information Act (FOIA) is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government.”