D.C. Circuit Poised to Release Private Emails

     WASHINGTON (CN) – The D.C. Circuit seemed inclined Thursday to extend the Freedom of Information Act’s reach to cover emails from a government official’s private account.
     While the private emails of another political figure have long been fodder for the federal court system, the case at hand concerns a FOIA request that the Competitive Enterprise Institute filed against the Office of Science and Technology Policy.
     The institute seeks access to emails OSTP director John Holdren sent and received from a nongovernment email account tied to his former position at the Woods Hole Research Center.
     In denying that request, however, OSTP, a branch of the White House, said the records were “beyond the reach of FOIA” because they were held on a private server.
     Though a federal judge sided with the agency, its position seemed to waver Thursday in a hearing at the E. Barrett Prettyman courthouse in downtown Washington.
     Justice Department attorney Daniel Tenny earned derision from the court in arguing that the OSTP is not in control of emails that are held on a private server.
     “The mere fact that you have to ask is evidence that you don’t have control,” Tenny said.
     Judge Harry Edwards scoffed at this reasoning, at different times in the hearing calling it the “silly” and saying it “makes no sense.”
     “It’s in my daughter’s house, and I don’t have a key, is that an answer?” Edwards said, cutting off Tenny as he tried to explain how Holdren’s emails were under private control.
     Throughout the arguments Edwards questioned Tenny’s initial point and expressed frustration at the lower court for declining to say whether the emails in question even constituted records.
     “Your arguments keep coming back to the agency doesn’t have to ask for it,” Edwards said. “That’s silly.”
     Judge David Sentelle joined Edwards in the chastisement, summarizing the government’s circular logic as arguing that an agency need not turn over the records it doesn’t have because it can’t turn over records it doesn’t have.
     Trying to fend off this criticism, Tenny questioned the judges about what would happen if an employee withheld records from the agency that were in his control.
     Surely the agency could not then be seen as wrongly withholding the records, Tenny argued.
     But Edwards rejected this as a doomsday scenario unlikely to occur.
     “You’re assume the worst, that the employee is going to say, ‘go fly a kite,'” Edwards said. “The rest of us are assuming if the agency says, ‘These are our records; bring them home,’ they’ll bring them home.'”
     Set against the public’s rights to Holdren’s emails is the 1980 decision Kissinger v. Reporters Committee for Freedom of the Press, in which the Supreme Court held that transcripts former Secretary of State Henry Kissinger gave to the Library of Congress were not subject to FOIA requests, as they were not under agency control.
     Though Tenny saw no difference between Kissinger and the case at hand, Competitive Enterprise Institute attorney Hans Bader carved distinctions between the two cases, as did Katie Lynn Townsend, who argued on behalf of the Reporters Committee for Freedom of the Press and other groups supporting the institute’s position as amici curiae.
     Courthouse News Service joined a brief the committee submitted last summer siding with the Competitive Enterprise Institute.
     To Tenny, the cases both concerned an agency head who took federal records and put them someplace his agency could not access them.
     In Kissinger’s case, this was the Library of Congress, while in Holdren’s it was in a private email server.
     To require the agency to get the records from Holdren’s private server would be akin to asking it to search an employee’s home on the suspicion that employee took a record home, Tenny said.
     But Bader argued the records in this case are easier to obtain than they were in Kissinger because electronic records are inherently more portable than physical ones. Bader also said the agency would have some “leverage” in forcing its employee to turn over records.
     “That ruling is wrong under any plausible interpretation of the word control,” Bader said of the lower court’s ruling.
     Similarly, Townsend pointed out Kissinger legally transferred the records to the Library of Congress, unlike Holdren’s arrangement with his emails.
     Bader also referenced a 2010 OSTP memo that encouraged employees not to use private email accounts, and to forward any office-related emails to official accounts where applicable – a directive Holdren apparently ignored.
     “He’s the alter ego of the agency,” Bader said of Holdren. “He is the agency.”

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