FEDERAL AGENCIES

Judges rebuke Obama admin's arguments over private emails

Federal judges don’t appear to be buying the Obama administration's arguments that a lawsuit seeking access a top White House official’s private emails should be tossed out.

Judges on the U.S. Court of Appeals for the District of Columbia Circuit rebuffed government attorneys' arguments today that they should uphold a lower court's dismissal of a case aimed at obtaining work-related emails kept by White House science adviser John Holdren on a private server.

Senior Judge Harry Edwards, a Democratic appointee, said if the judges were to write an opinion in line with what Justice Department attorneys were asking, "a lot of people would be laughing at us."

Edwards and the other judges on the panel challenged the government's argument that emails held on a private server aren't subject to the Freedom of Information Act (FOIA) because they're outside the control of the government. They questioned the lower court's dismissal and suggested that they may remand the lawsuit, pressing the judge to determine whether the emails in question are in fact "agency records" subject to FOIA disclosure requirements.

Senior Judge David Sentelle, a Republican appointee, suggested that it would be helpful for the court to have a full record of facts in the case. "Shouldn't we remand and find out?" he asked. Edwards and Sentelle were joined on the three-judge panel by Democratic appointee Sri Srinivasan.

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The lawsuit filed by the libertarian nonprofit Competitive Enterprise Institute could have broad ramifications when it comes to government obligations to pony up officials' work-related emails sent using private accounts.

A coalition of media groups -- including the Reporters Committee for Freedom of the Press, the Associated Press, National Public Radio Inc., The New York Times and The Washington Post -- has also weighed in, urging the court to ensure that government records kept on personal email accounts can be accessed under FOIA.

CEI is seeking emails that Holdren sent and received using his nongovernmental email account at the Woods Hole Research Center, an independent nonprofit where he served as director before joining the Obama White House. CEI learned that Holdren had been sending work-related emails using that account through separate FOIA litigation involving emails from former U.S. EPA Administrator Lisa Jackson.

In May 2014, CEI sued the government to compel the release of Holdren's work-related emails. Obama administration attorneys argued that the lawsuit should be dismissed because the Woods Hole email account was outside its control and beyond the reach of FOIA. U.S. District Court for the District of Columbia Judge Gladys Kessler, a Democratic appointee, sided with the government last April, dismissing CEI's claim.

But CEI and media organizations say that argument is troubling and that the district court's opinion could set a precedent that allows government officials to skirt transparency laws by using private email accounts instead of governmental emails. CEI is now urging the D.C. Circuit Court judges to take another look.

Holdren isn't the only high-ranking political official whose use of private emails has drawn scrutiny. Democratic presidential candidate Hillary Clinton has come under fire for her use of a private account while she was secretary of State. Former EPA Administrator Jackson and other EPA officials have also sparked controversy by using private email accounts to conduct government business.

"Agencies have repeatedly shown the ability to search employees' private email accounts and produce work-related emails from them in response to FOIA requests," CEI said in a brief to the court.

The media organizations weighing in on the case argue the lower court's decision could keep important information hidden from the public.

"Private or personal email accounts are used at all levels of the federal government to discuss government business of significant public importance," the media groups told the court in their brief. They added, "Access to email sent or received by public officials from personal email accounts has proved instrumental in revealing misconduct."

The judges today likened the case to a situation where a government employee was keeping an agency document at his home, and the agency was saying it was therefore out of its control because it was in a private residence.

The government's lawyers argue that FOIA isn't the correct law to challenge agencies' failures to keep tabs on private email use for government business.

The district court "rejected plaintiff's policy concern that 'agency officials will escape FOIA coverage altogether by conducting government business with their personal accounts,'" government attorneys said in a brief to the D.C. Circuit Court. "This concern is addressed not by the FOIA, but by other statutes."

A decision in the case, Competitive Enterprise Institute v. Office of Science and Technology Policy, is likely within the next year.

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