The Volokh Conspiracy
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Today, in Competitive Enterprise Institute v. Office of Science & Technology Policy, the U.S. Court of Appeals for the D.C. Circuit held that private email accounts are not categorically exempt from the Freedom of Information Act. Specifically, the court concluded that documents that would otherwise be considered government records for FOIA purposes if within the government's control are not exempted from FOIA just because they are kept or maintained in a private email account.
Here is the introduction to the court's opinion by Senior Circuit Judge David Sentelle:
Competitive Enterprise Institute appeals from a judgment of the district court dismissing its Freedom of Information Act (FOIA) action against the Office of Science and Technology Policy (OSTP). Appellant contends that the district court improperly ruled that documents which might otherwise be government records for FOIA purposes need not be searched for or turned over to the requestor because the head of the defendant agency maintained the putative records on a private email account in his name at a site other than the government email site which the agency had searched. Because we agree with plaintiff-appellant 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, we reverse the dismissal and remand the case for further proceedings.
Sentelle further explained:
[A]n agency always acts through its employees and officials. 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.
This seems to us to be the only resolution that makes sense. 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. The agency's claim before us simply makes little sense. That argument relies on the proposition that the emails in question are under the control of a private entity, not the government. That private entity is Woods Hole Research Center, apparently the owner of the "whrc.org" domain where Director Holdren of the OSTP maintains the account firstname.lastname@example.org. While this specific fact is not addressed in the record, it is not apparent to us that the domain where an email account is maintained controls the emails therein to the exclusion of the user, in this case Director Holdren, who maintains the account. 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. . . .
. . . 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. 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.
Senior Circuit Judge Harry Edwards joined Sentelle's opinion. Judge Sri Srinivasan wrote separately, concurring in the judgment.