Court: Feds can't hide outside emails from FOIA

Emails that contain government records don't gain immunity from FOIA just because they reside on an non-governmental system, an appeals court decided July 5.

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Storing emails on non-government servers does not protect them from Freedom of Information Act requests, the D.C. Circuit Court of Appeals determined in a July 5 decision.

The decision was hailed as a win for transparency, though it remains unclear how, exactly, agencies are expected to search outside their own IT infrastructure for government records.

"[A]n agency always acts through its employees and officials," wrote Senior Circuit Judge David Sentelle, penning the court's opinion. "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."

The case, Competitive Enterprise Institute v. Office of Science and Technology Policy, concerned OSTP Director John Holdren's emails.

In 2013, CEI filed a FOIA request for any government work-related emails to or from Holdren's Woods Hole Research Center email address.

The next year, OSTP denied the request on the grounds that Woods Hole, "a private organization," controlled the records.

The D.C. court found that OSTP's reasoning was flawed, dismissing OSTP's proposition that Woods Hole, not Holdren, "control[led]" Holdren's email account.

"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," the court wrote.

Noting that OSTP did not claim to have even tried to obtain or search the emails for FOIA-able information, the court said agency leaders cannot shield such information from public view by shunting it through extra-government accounts.

The decision might serve to undergird recent additions to federal records law. Updates to the Federal Records Act signed in 2014 require officials using non-government accounts to forward copies of official emails to government systems within 20 days. While there isn't a perfect correlation between FOIA-eligible documents and federal records, there is significant overlap.

"This seems to us to be the only resolution that makes sense," the court wrote. "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."

Judge Sri Srinivasan offered a concurring opinion focused more narrowly on establishing email ownership.

CEI lauded the court's decision.

"[I]f 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," said CEI senior fellow Marlo Lewis in a blog post.

Nate Jones, director of the National Security Archive's Freedom of Information Act Project, also hailed the transparency implications of the decision.

"This case is an expansive win for FOIA requesters," he told FCW. "This ruling makes it more difficult for federal employees to shield government work from FOIA requests simply by sending that work from a private email."

The decision, coming as the National Archives and Records Administration spearheads a cross-government attempt to automate internal email records management, leaves open the question of just how agencies will go about searching emails stored on private or commercial servers for government information.

"Will the holder of the private accounts in question search them themselves?" Jones asked. "Turn over their passwords to FOIA or IT specialists?  Does any government information in an email in a private account automatically make the email a 'federal record' subject to FOIA?"

Before now, Jones said, courts have let agencies off the hook for searching personal accounts.

In the high-profile case of Hillary Clinton, Jones noted, the government has been publishing her emails because she returned them to the State Department, providing public access that may have been legally blocked under prior case law if she'd held onto them.

On the same day that the D.C. court handed down its decision, the FBI declared Clinton's use of personal email for government purposes as Secretary of State was "extremely careless" but did not merit criminal prosecution.