July 7, 2016 – Reporters Committee for Freedom of the Press
by Sophie Murguia
Agency records can be subject to the Freedom of Information Act even if they are kept in an employee’s nongovernmental email account, a federal appeals court ruled on Tuesday.
The ruling by the U.S. Court of Appeals for the District of Columbia Circuit in Competitive Enterprise Institute v. Office of Science and Technology Policy reversed a decision by a district court, which dismissed the case last year. The D.C. Circuit’s decision could set an important precedent for journalists and other FOIA requesters by clarifying that agency records are subject to FOIA regardless of their location.
The Competitive Enterprise Institute (CEI), a libertarian advocacy group, sued the White House Office of Science and Technology Policy (OSTP) after the agency denied a public records request for work-related emails kept in the private account of agency director John Holdren. Holdren maintained an email account at the Woods Hole Research Center, where he worked previously.
OSTP claimed that FOIA did not apply to Holdren’s nongovernmental email account, because the agency did not have control over it. The district court sided with OSTP, citing the Supreme Court’s 1980 decision in Kissinger v. Reporters Committee for Freedom of the Press, which held that records Kissinger transferred to the Library of Congress were not available through FOIA.
But the D.C. Circuit disagreed, saying that Kissinger did not apply because the emails in Holdren’s private account were in the agency’s control.
Judge David Sentelle wrote in the court’s opinion that “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.”
Sentelle also said that OSTP’s argument was “inconsistent with the purpose of FOIA.”
“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 an another domain, that purpose is hardly served,” he wrote. “It would make as much sense to say that the department head could deprive requesters of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”
Judge Harry Edwards joined Sentelle’s opinion, and Judge Sri Srinivasan wrote a concurring opinion.
The Reporters Committee filed an amicus brief in the case on behalf of a group of 26 media companies, arguing because OSTP had withheld the records the district court’s dismissal was improper.
While the D.C. Circuit’s ruling overturned the district court’s dismissal of the case, it did not order the release of any documents. The case now goes back to the lower court to be decided.
In a statement, CEI senior fellow Marlo Lewis celebrated the decision, saying that the D.C. Circuit could have set a dangerous precedent if it had upheld the district court’s ruling.
“While today’s ruling is a major victory for government transparency, it’s stunning that it takes a court decision for federal employees to be held accountable to the law,” Lewis said.
The ruling could have significant implications for journalists in the digital age: The Reporters Committee’s amicus brief cited a survey in which 33 percent of high-level federal officials said that employees in their agency use personal email for work at least sometimes, while 15 percent use it always or often. The decision also came on the same day that the F.B.I. said it would not recommend charges against Hillary Clinton for her use of a private email server when she was secretary of state.
Katie Townsend, the litigation director for the Reporters Committee, said the ruling was “critically important” for FOIA requesters.
“The Court of Appeals made clear that agency records are accessible to the public under FOIA even if they are maintained in a nongovernmental email account or in some other nonofficial location,” she said. “Agency officials cannot evade FOIA by conducting government business using nongovernmental email accounts.”