FEDERAL AGENCIES

White House loses fight over science adviser's emails

Federal judges today shot down the Obama administration's arguments that some private emails sent by a top White House science official aren't subject to public disclosure laws.

The lawsuit over White House science adviser John Holdren's emails has been closely watched by critics of the Obama administration, major news organizations and others who urged the court to ensure that government records kept on personal email accounts can be accessed under the Freedom of Information Act.

A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit today sided with the libertarian nonprofit group Competitive Enterprise Institute, which wants access to work-related emails that Holdren appears to have sent and received using his nongovernment email account at the Woods Hole Research Center. Holdren was the director of the private research center before he joined the Obama White House.

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. A lower court sided with the government last year, dismissing CEI's claim.

But D.C. Circuit Senior Judge David Sentelle, a Republican appointee, reversed that lower court's ruling, writing in today's opinion that "an agency cannot shield its records from search or disclosure under FOIA by the expedient of storing them in a private email account controlled by the agency head."

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The judges said it isn't apparent in this case that Woods Hole's server exclusively controls the emails in question. "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."

And the opinion said the government's argument is inconsistent with FOIA's purpose.

"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," the ruling says. "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 sent the case back to the U.S. District Court for the District of Columbia for further proceedings.

The judges noted that they are not ordering the "specific disclosure of any document," and that the White House Office of Science and Technology Policy may have "valid exemption claims."

Sentelle was joined in the opinion by Senior Judge Harry Edwards, a Democratic appointee.

Judge Sri Srinivasan -- an Obama appointee who's widely discussed as a possible Supreme Court contender -- wrote a concurring opinion agreeing that the lower court's dismissal of the case should be reversed.

Srinivasan wrote that the agency should "be free to present additional facts that would make it apparent that Holdren is holding the emails in his private account under a claim of right. I would conclude here only that a current official's mere possession of assumed agency records in a (physical or virtual) location beyond the agency's ordinary domain, in and of itself, does not mean that the agency lacks the control necessary for a withholding."

The panel heard oral arguments in the case in January (Greenwire, Jan. 14).

The opinion comes as presumptive Democratic presidential nominee Hillary Clinton is under fire for her use of a private email account while she was secretary of State.

FBI Director James Comey told reporters today that his agency is recommending to the Justice Department that "no charges are appropriate" in the case surrounding Clinton's use of a personal email system.

"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information," he said, "there is evidence that they were extremely careless in their handling of very sensitive, highly classified information."

Click here to read the opinion.

Twitter: @rbravender Email: rbravender@eenews.net

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