Feds’ Private Emails|Not Exempt From FOIA


     (CN) — The D.C. Circuit ruled Tuesday that the purpose of the Freedom of Information Act is “hardly served” if government officials who conduct official business on nongovernment servers can claim the outside records are beyond the public’s reach.
     The libertarian think tank Competitive Enterprise Institute filed a FOIA request in June 2014 after the Office of Science and Technology Policy, or OSTP, refused its request to take down or edit a two-minute video and blog article in which agency director John Holdren linked global warming to the “polar vortex” weather phenomenon.
     The nonprofit opposes government action to limit greenhouse gases. It has received funding from the American Fuel and Petrochemical Manufacturers and Volkswagen, among others, according to the Washington Post.
     At the center of the records request are drafts of the “OSTP Letter,” a three-page legal explanation of how the agency came to its conclusion.
     The institute sought access to emails Holdren sent and received from a nongovernment email account, jholdren@whrc.org, tied to his former position at the Woods Hole Research Center.
     OSTP denied the request, however, arguing that the records were “beyond the reach of FOIA” because they were held on a private server.
     The D.C. Circuit reversed a lower court ruling for the government Tuesday.
     “An agency always acts through its employees and officials,” Judge David Sentelle wrote for a three-judge panel. “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.”
     Sentelle added, “When one receives an email from John Doe at, for example, gmail.com, and replies thereto, the replier would be likely to think that message is going to John Doe, not gmail.com. Even so here.”
     The appeals court did not order the specific disclosure of any particular email, and said that perhaps all the requested emails fall under an exemption. However, Holden cannot withhold the documents simply because they are on a private server.
     In a separate concurrence, Judge Sri Srinivasan invited readers to imagine an official took an agency document home to review and accidentally left it there.
     “If a FOIA request were received while the document happened to remain in the official’s residence, the agency presumably could not simply bury its head in the sand and disclaim any obligation to disclose the document on the rationale that the official possesses it in a location beyond the agency’s control,” he wrote. “Rather, we assume the official would voluntarily retrieve the document to facilitate its inclusion in the agency’s FOIA disclosure.”
     Katie Townsend, counsel for amici Reporters Committee for Freedom of the Press, said that a ruling for the government would have created “a large loophole in the FOIA.” Courthouse News Service joined a brief the committee submitted last summer siding with the Competitive Enterprise Institute.
     “Thankfully, the court of appeals made it clear that agency records are agency records — they’re publicly accessible even if they’re maintained on a nongovernmental or personal email account,” Townsend said.
     Townsend said the national uproar over Hillary Clinton’s use of a private email server during her time as Secretary of State has brought increased attention to the case.
     “It opened people’s eyes to this, which is a positive thing. Otherwise, [the use of a private server] can really hamper the public’s ability to access records and information that they’re entitled to. This decision, for purposes of FOIA, is a very good step in the right direction,” she said in a phone interview.
     However, “this is not a political issue at all,” Townsend said. “It’s about transparency across the board and it’s about FOIA playing the role it’s intended to play. Otherwise, governmental officials and employees can evade FOIA and that’s bad for the public overall regardless of who’s requesting or who’s doing it because that’s bad for transparency and accountability.”

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