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. icon
    Ninja (profile), 8 Jul 2016 @ 11:54am

    What if the private servers are hosted in another country?

    OOps, sorry, didn't mean to give them ideas.

    reply to this | link to this | view in thread ]

  2. icon
    Uriel-238 (profile), 8 Jul 2016 @ 11:55am

    So the best way to not get your private emails open to FOIA access...

    Is to only discuss private matters on a private email server.

    That would be a good policy, that one government-related email on a private server is enough to FOIA the whole account, hence our officials would be compelled to practice vigilance to separate private and public life.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 8 Jul 2016 @ 12:32pm

    Cliton

    she is president so why they care. not likes she do anything bad cuz her job is be good for other pepole.
    need to care about them not her. she smart lady. right?

    reply to this | link to this | view in thread ]

  4. identicon
    UniKyrn, 8 Jul 2016 @ 12:32pm

    And of course if you're running a private server, instead of using a public account someplace else, you still get to answer the FOIA request with "sorry, we had a disk crash".

    You get to hide what you're doing and because it's a private machine one good kick to the side of it while it's running and you just won a "Stay out of Jail Free" card.

    reply to this | link to this | view in thread ]

  5. 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)

    reply to this | link to this | view in thread ]

  6. icon
    RainbowboomX (profile), 8 Jul 2016 @ 1:18pm

    Re:

    Dont count out the third parties also like the libertarians and the greens and etc.

    reply to this | link to this | view in thread ]

  7. icon
    RainbowboomX (profile), 8 Jul 2016 @ 1:18pm

    Re:

    Dont count out the third parties also like the libertarians and the greens and etc.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 8 Jul 2016 @ 1:27pm

    In other words

    Her private email server became public record as soon as she sent or received her first work related email. The first email to be upgraded to secret just made the whole thing a clusterfudge for anyone connected to it. Everything I've been told leads me to the belief that anyone who knowingly sent or received even a potentially secret email from it will lose their clearances for life.

    reply to this | link to this | view in thread ]

  9. identicon
    The Lone Ranger, 8 Jul 2016 @ 8:41pm

    We don't need no stinking badges

    So what? The government has another area from which they can pull excuses out of their ass. FOIA is a joke.

    reply to this | link to this | view in thread ]

  10. icon
    Anon E. Mous (profile), 9 Jul 2016 @ 4:10am

    Isn't it convenient that the FBI wrapped up their investigation of Clinton and decided "nothing to see here" before this DC Circuit Court of Appeals decision came out.

    One has to wonder if there was pressure applied thru the USDOJ to the FBI to make sure there "investigation" of HRC was completed before the DC Circuit Court of Appeals decision came down, thus the republicans and media along with Trump couldn't point to the Appeals court decision and say "a-ha"

    Could this be just strange timing? Sure. Could it be avoiding Stepping on a landmine by asserting some political might with the help of the White House so as not to threaten the democrat nominee for POTUS? You'll have to decide that one yourself, but the optics sure does make an interesting point of debate.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 9 Jul 2016 @ 7:32am

    Re:

    "This is the one big hope with Donald Trump"

    Because he is well known for not lying ... lol - right?

    "as president he will have the courage to prosecute the crimes of the previous administration"(s)

    Yup, I'm sure he would encourage the prosecution of Bush and Cheney - not.


    One thing is certain: corrupt, secretive, and evasive people are equally corrupt, secretive, and evasive.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 9 Jul 2016 @ 7:37am

    Re: In other words

    Anything can be become classified, having been sent previously does not then make that transmission subject to the rules retroactively. This would seem obvious, unless one were attempting to create a scandal - which is apparently quite easy to do.

    reply to this | link to this | view in thread ]


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