Federal Court Rules Government Officials Can't Use Private Servers To Dodge Freedom of Information Act: John Holdren, Office of Science & Tech Policy

[While this decision is remarkably important to past and present emails and second email accounts of all government officials, I am most interested right now with what science and information was used in John Holdren and the White House's study.  Steve]

Federal Court Rules Government Officials Can't Use Private Servers To Dodge Freedom of Information Act

By Paul Fletcher, Forbes Contributor

The head of a government agency cannot reject a Freedom of Information Act request for work-related emails by claiming that the documents are maintained on a private server not controlled by the agency, according to the U.S. Court of Appeals for the D.C. Circuit.

No, this case doesn’t involve a certain presidential candidate. It involves James Holdren, head of the Office of Science and Technology Policy.

The case was somewhat overlooked earlier this month, as it was handed down by the court on the very same day that FBI Director James B. Comey held a press conference announcing that Hillary Clinton would not be charged for any actions related to the homebrew server she kept at her home in New York while serving as Secretary of State.

The case was a big win for the open-government community and FOIA advocates, as the Justice Department argued that FOIA didn’t apply to emails to and from James Holdren, director of OSTP, on a private account. He had maintained an account on whrc.org, a domain maintained by Woods Hole Research Center, an environmental think tank.

The plaintiff in the case, Competitive Enterprise Institute, is a libertarian free-market nonprofit.

CEI had learned about Holdren’s account from other litigation that disclosed Holdren may have used that address for work-related correspondence, according Judge David Sentelle, who wrote the majority opinion in the case.

CEI pursued its FOIA request until it had exhausted all channels, then filed suit. The group lost at the district court level, but the D.C. Circuit reversed and sent the case back for further proceedings.

The Justice Department argued, among other things, that FOIA didn’t apply to the whrc.org email because the account was “under the control” of Woods Hole.

Nonsense, said Sentelle in so many words. “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,” Sentelle wrote.

And the government’s position simply is “inconsistent” with the purpose of FOIA.

The U.S. Supreme Court famously said in 1989 that the function of FOIA  is serving “the citizens’ right to be informed about what their government is up to.”

If the head of an agency can circumvent that right merely by moving correspondence to a different email service not controlled by the agency, “that purpose is hardly served,” the judge said.

Using a more straightforward example, Sentelle said the argument would be like a department chief depriving people seeking documents by leaving hard-copy documents “in a file at his daughter’s house and then claiming they are under her control.”

The court wasn’t buying Justice was trying to sell. Nor was the court ordering that any documents be handed over right away. That will wait for proceedings back in the district court, which now will examine any exemption claims Holdren might have.

While the CEI v. OSTP lawsuit had nothing to do with Clinton, Politico said it was pretty clear the three judges on the D.C. Circuit panel knew the political atmosphere in which they ruled.

And a federal judge hearing a FOIA email suit filed by Judicial Watch against Clinton stayed the action last month, noting that he was watching to see how the appellate court handled the Holdren matter.

Now everyone knows, although it’s not entirely clear what will happen next in the email lawsuits.

Give the last word to the winners in the case: “The ‘most transparent administration in history’ has proven over and over that it has no intention of actually letting the American public know what it is doing,” CEI senior fellow Marlo Lewis told Politico. “Director Holdren is not the first agency head to be found using private email for his government work, but as we continue our legal battle in this case, we seek for this unlawful behavior to come to an end.”

I practiced law for three years early in my career; I have practiced journalism for the past 28 years, as the publisher and editor-in-chief of a statewide legal newspaper. On my first day at the paper, I was waxing strips of text and placing them on flats. Today we publish our stories first on a WordPress website and production of the newspaper is handled by a hub in another state. I choose to be an optimist about the journalism business – I look forward to watching the development of new channels of distribution and how the industry will make money on them. I am the national president of the Society of Professional Journalists, the country’s largest and most broad-based group for journalists. In that position, I have focused on ethics and Freedom of Information issues. Follow me on Twitter @paulfletcher.I practiced law for three years early in my career; I have practiced journalism for the past 28 years, as the publisher and editor-in-chief of a statewide legal newspaper. On my first day at the paper, I was waxing strips of text and placing them on flats. Today we publish our stories first on a WordPress website and production of the newspaper is handled by a hub in another state. I choose to be an optimist about the journalism business – I look forward to watching the development of new channels of distribution and how the industry will make money on them. I am the national president of the Society of Professional Journalists, the country’s largest and most broad-based group for journalists. In that position, I have focused on ethics and Freedom of Information issues. Follow me on Twitter @paulfletcher