The Competitive Enterprise Institute (CEI) has appealed a decision by a federal court denying it access to work-related e-mails belonging to the private e-mail account of John Holdren, director of the White House Office of Science and Technology Policy.
In 2013, CEI filed a Freedom of Information Act (FOIA) request for work-related e-mails located in Holdren’s e-mail account the Woods Hole Research Center. Responding to the FOIA request, the Office of Science and Technology Policy said the e-mails were not subject to FOIA, prompting CEI to file a lawsuit in a federal district court.
In March 2015, a district court granted the federal government’s motion to dismiss the suit, ruling since the agency lacked control over Holdren’s e-mails, it had no obligation to produce them under FOIA.
“Agency reluctance to turn over private server e-mails, especially from high officials, unfortunately is not uncommon,” said Sam Kazman, general counsel for CEI. “But what we thought was totally unjustified was the district court dismissing the case at the very outset.”
CEI appealed, and the DC Circuit Court of Appeals heard oral arguments on January 14, 2016.
Reporters Support Suit
The Reporters Committee for Freedom of the Press (RCFP) and 26 other press organizations, including the Associated Press, Dow Jones & Company, CNN, National Public Radio, News Corporation, and The New York Times, filed a friend-of-the-court brief in support of CEI’s FOIA request.
RCFP’s brief says if federal workers are able to shield personal e-mail accounts from the public, there is no way for the public to hold government workers accountable.
“If e-mail that meets the definition of an ‘agency record’ is not subject to FOIA simply because it happens to be stored on a private e-mail account, vast swaths of government conduct will be hidden from public view,” said RCFP in its brief.
Kazman says the ability to reach Holdren’s e-mails would not constitute a privacy intrusion.
“When we’re arguing e-mails on a private server are subject to FOIA, we are not saying FOIA gives the agency the right to examine everything in that private e-mail account,” Kazman said. “It is simply that work-related documents in that e-mail account constitute agency records and someone comes into the job knowing that, so there’s no real intrusion on privacy here.”
Ann N. Purvis ([email protected]) writes from Dallas, Texas.
Reporters Committee for Freedom of the Press, et al., “Brief of Amici Curiae from the Reporters Committee for Freedom of the Press and 26 Media Organizations in Support of Appellant,” January 14, 2015: https://heartland.org/policy-documents/brief-amic-i-curiae-reporte-rs-committee-freedom-press-and-26-media-organizations-s