A D.C. Court of Appeals ruling earlier this week that said public files are not exempt from Freedom of Information Act (FOIA) disclosures simply because they are stored on a government official’s private email account is being hailed by many media organizations as a victory for open government, and could have an impact on FOIA requests in cases like that of Hillary Clinton, who used a private email server while at the State Department.
In the case of Competitive Enterprise Institute v. Office of Science and Technology Policy, a three-judge panel overturned a lower court’s ruling that the U.S. OSTP did not need to turn over documents related to a controversial global warming video it produced because agency director John Holdren maintained the records on a private email account instead of on government servers.
An opinion filed by Senior Circuit Judge David Sentelle emphasized that the contents were of public interest and that the organization operating the private email account in question, Woods Hole Research Center, did not have exclusive possession and control of OSTP agency records.
“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,” wrote Sentelle in his official ruling.
The appellant in this case, CEI, is a libertarian pro-industry organization concerned that the video was misleading in its presentation of global warming science. But the decision is just as significant for the media’s rights to public records, as evidenced by the 27 organizations that collectively filed an amicus curiae brief in support of document disclosure.
“We’re very happy with the outcome. The case makes it very clear that whether something is subject to FOIA or not does not turn on the location of the document,” even if it’s on a non-governmental account, Adam Marshall, an attorney with the Reporters Committee for Freedom of the Press, which spearheaded the filing of the amicus brief, told SCMagazine.com.
The journalist organization noted in its brief the results of a recent Government Business Council survey that found 16 percent of high-level federal employees always or often use personal email accounts for government business, while 63 percent said they do so with varying degrees of frequency.
If FOIA wasn’t applicable to those documents, then by the same logic, “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,” Judge Sentelle argued.
Joey Senat, a member of the Society of Professional Journalists’ national Freedom of Information Committee and an associate professor at Oklahoma State University’s School of Media and Strategic Communications, agreed with the judge’s position. “There’s no limiting principle to what the government is arguing. In other words, a mayor could walk into City Hall on a private laptop, do all the city business on that private laptop and get up and walk out and the government’s argument in this case is that it remains private,” said Senat in an interview with SCMagazine.com.
Such contentions on the part of the government lead to concerns that an official might even intentionally conduct business via a private server or email account simply for the purpose of evading FOIA mandates.
“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,” stated Marlo Lewis, CEI senior fellow, in a CEI press release. “Just think, if today’s ruling had gone the other way, the implication would be that all government business could be transacted on private email and be invisible to citizens, completely gutting FOIA – absurd!”
SCMagazine.com also reached out to the U.S. Department of Justice, which represented the OSTP in the legal matter. “The Justice Department declines to comment on this pending litigation,” responded Nicole A. Navas, DOJ spokesperson.
Because the D.C. Court of Appeals is regarded as a highly influential voice in FOIA matters, media organizations are hopeful the ruling will influence similar contested FOIA matters in other jurisdictions. It also could have a profound effect on future FOIA requests involving Clinton’s email communications as Secretary of State, many of which were stored on a private server.
For instance, Politico reported in June that a D.C. federal District Court judge overseeing a FOIA-based lawsuit involving Clinton’s private emails had placed a temporary hold on the case until the D.C. Circuit issued its FOIA ruling. With the matter now resolved – at least pending appeal – it would now be difficult for Clinton’s lawyers to persuade the court to withhold the emails for reasons of privacy or account ownership.
“The message it carries is… a very simple but very profound one – that it doesn’t matter where the agency records are, you still have to look for them and produce them under FOIA, and that goes not just for email but all other kinds of electronic records that may exist now or in the future,” said Marshall.
“All three judges actually applied common sense and an appreciation for the public’s need to know what the government is doing,” Senat continued. “What this court did was follow the same reasoning that state courts and states’ attorneys-general have followed all across the country: If you’re going to put government records on a private email account, then you give up some privacy” as it pertains to your personal email account.
One way to potentially reduce FOIA disputes moving forward would be to revise federal and state FOI legislation – as well as corresponding laws such as the Federal Records Act – to address ambiguous scenarios. “The federal [statute] is still flawed,” said Senat. “They’re all flawed in one way or another,” noting a particular problem in the ability to enforce many of these laws. “This is being fought around the country for years now and it could be simply resolved by having legislation, including from Congress, clarify that you can’t hide records by taking them home or putting them in a private email account.”
Marshall noted that the U.S. National Archives and Records Administration has published a series of guidelines to help agencies maintain and distribute electronic records in a more expeditious, searchable way, but the process is far from perfect. “We need to get there faster,” said Marshall, adding that a FOIA request should theoretically be as simple as a Google search. “I think it’s frustrating for a lot of people who use modern technology to think that the same types of searches and indexing that we use every day aren’t available to the federal government.”