Legal Issues

by Tim Cushing


Filed Under:
foia, government, private email



Appeals Court Says Government Email Stored On Private Servers Is Still Subject To FOIA Requests

from the not-really-about-Clinton,-but-pretty-much-about-Clinton dept

A recent decision by the DC Circuit Court of Appeals may not directly reference the Hillary Clinton email fiasco, but the conclusion reached set off irony detectors all over as it arrived the same day FBI director James Comey announced that Clinton's private email server may have been a stupid idea, but not a criminally stupid one.

There were indications that Clinton's use of a private email address was an attempt to route around FOIA requests. As her server was being set up, communications from both her staff and the State Department's noted that an account in her name existed already, but would be subject to FOIA requests.

This has been a problem elsewhere. Several government officials have conducted an inordinate amount of government business using private email accounts or personal devices in hopes of skirting public records requests. The DC Circuit Court's case deals with a little-known government agency, but an all-too-familiar dodge by public officials.

In a decision Tuesday in a case not involving Clinton directly, the U.S. Court of Appeals for the D.C. Circuit held that messages contained in a personal email account can sometimes be considered government records subject to Freedom of Information Act requests.

The case ruled on by the D.C. Circuit focused on a relatively obscure White House unit: the Office of Science and Technology Policy.

The Competitive Enterprise Institute FOIA'ed work-related emails sent to and from the administration's science advisor, John Holdren. Holdren demurred, leading to this lawsuit that has worked its way up to the Appeals Court. The lower court decided the government was under no obligation to search private email accounts for responsive communications. The Appeals Court -- while not necessarily saying the government IS obligated to do this -- found that the lower court had been too hasty in its dismissal of CEI's complaint. From the decision [PDF]:

As relevant here, we held in Burka, that the agency must search and disclose records that were not on its premises but were under its “constructive control.”

[...]

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.

This seems to us to be the only resolution that makes sense. 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.

[...]

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.

A solid conclusion, and one that hopefully discourages officials from playing keepaway with public documents by hosting them anywhere other than on government servers. But here's the caveat: this still may not result in any additional emails making their way into CEI's hands.

We make clear that we are not ordering the specific disclosure of any document. It may be that OSTP has valid exemption claims, or even that no document found among the jholdren@whrc.org email falls within the definition of “agency records.” However, those questions are for litigation in the district court in the first instance.

It's good to know where the DC Circuit Court of Appeals stands on the issue, seeing as nearly every federal FOIA lawsuit is handled in this jurisdiction. And if Clinton hoped to use the "private email account" excuse to withhold communications from FOIA requesters, it would appear to be a far less effective tactic than it was prior to this decision.


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  1. identicon
    Anonymous Coward, 8 Jul 2016 @ 1:13pm

    I would have thought this issue should have been settled a decade ago when Dick Cheney and other Bush White house officials were caught using non-government email servers ("privately" owned by the Republican party) to conduct official business, in order to evade both FOIA and mandatory government archiving (which didn't work anyway, since even emails stored on official White House servers mysteriously went missing).

    One thing is certain: both the Republicans and Democrats are equally corrupt, secretive, and evasive. This is the one big hope with Donald Trump -- that as president he will have the courage to prosecute the crimes of the previous administration. (Yes, the same promise that Obama made and then broke)

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