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AP Photo/Charles Dharapak OSTP Director James Holdren walks and talks with President Obama at the White House in 2014. A…

AP Photo/Charles Dharapak

OSTP Director James Holdren walks and talks with President Obama at the White House in 2014.

A pending decision by the U.S. Court of Appeals for the District of Columbia Circuit on whether the federal Freedom of Information Act applies to agency records held in nongovernmental email accounts could set an important precedent in favor of access to such records.

On Jan. 14, the Court heard oral arguments in Competitive Enterprise Institute v. Office of Science and Technology Policy, which arose from a FOIA request by the conservative advocacy group Competitive Enterprise Institute (CEI) to the White House Office of Science and Technology Policy (OSTP). CEI sought, and was denied access to, OSTP-related email held in OSTP Director James Holdren’s email account at Wood’s Hole Research Center, Holdren’s previous employer.

OSTP denied CEI’s request on the ground that that the emails were beyond the reach of FOIA. CEI’s administrative appeal was unsuccessful, and it filed suit against OSTP alleging violations of FOIA and other claims.

The U.S. District Court for the District of Columbia, however, granted OSTP’s motion to dismiss CEI’s suit, holding that OSTP had not “withheld” the requested emails—a prerequisite to FOIA disclosure duties under the 1980 Supreme Court decision in Kissinger v. Reporters Committee for Freedom of the Press—because OSTP lacked control over emails located on Holdren’s Woods Hole account.

CEI appealed the District Court’s ruling to the D.C. Circuit. The central question on appeal is whether the District Court erred in holding that, as a matter of law, OSTP had not withheld the emails requested by CEI.

Reporters Committee, on behalf of a coalition of media companies, filed an amicus brief in support of CEI’s position before the D.C. Circuit.

Although as of this writing, the D.C. Circuit has not yet issued its opinion, statements and questions by the panel of judges during oral argument strongly indicate that the Court is not inclined to hold that agency records are, as a matter of law, outside the reach of FOIA merely because they are held in nongovernmental email accounts.

Such a ruling has the potential to reverberate across the field of record requesters and responding agencies, especially as government business is increasingly conducted over email and specifically through employees’ personal email accounts.

“Withholding” records

The central question on appeal of whether OSTP “withheld” the requested emails stems from Kissinger v. RCFP. In Kissinger, the Supreme Court held that a federal court’s jurisdiction over a FOIA case depends upon a showing that an agency has (1) “improperly” (2) “withheld” (3) “agency records.”

In Kissinger, three requestors made three separate FOIA requests to the State Department seeking transcripts of Henry Kissinger’s telephone conversations from when he was an assistant to President Nixon (from January 1969 to September 1973) and Secretary of State (from September 1973 to January 1977):

  • In January 1976, journalist William Safire filed the first FOIA request seeking transcripts created between 1969 and 1971, when Kissinger was an assistant to the president.
  • On Dec. 28 and 29, 1976, the Military Audit Project (MAP) submitted a second FOIA request seeking records of all of Kissinger’s conversations while secretary of state and assistant to the president.
  • Finally, on Jan. 13, 1977, the Reporters Committee and others filed a third request seeking the transcripts made by Kissinger while he was secretary of state and assistant to the president.

Importantly to the resolution of Kissinger, at the time that MAP and the Reporters Committee filed their FOIA requests, the State Department no longer had possession of or legal right to the transcripts that MAP and RCFP sought. In October 1976, while still Secretary of State, Kissinger moved the transcripts from the State Department to the private New York estate of then-Vice President Nelson Rockefeller. Then, on Dec. 24, 1976, before the MAP and RCFP requests were made, Kissinger deeded the transcripts to the Library of Congress. Finally, on Dec. 28, 1976, before the MAP request was made that same day and before the RCFP request was made weeks later, the transcripts were transferred to the Library of Congress.

The Supreme Court held in Kissinger that FOIA did not compel the State Department to release the records requested by MAP and RCFP because the State Department had not “withheld” them. The Court concluded that an agency must possess or control records before it can be said to have withheld them and made to disclose them under FOIA.

Because the RCFP and MAP requests were filed after the transcripts had been deeded and transferred to the Library of Congress, the Court held that the State Department lacked the custody or control of the transcripts necessary to find the Department had withheld them. The Court also held that FOIA did not obligate an agency to institute a lawsuit to retrieve wrongfully removed documents in order to respond to a FOIA request.

With regard to Safire’s request, the Court held that the records sought were not “agency records” because FOIA does not apply to the Office of the President, and Safire sought records made while Kissinger was serving as assistant to the president. Because the issue in CEI v. OSTP turned on whether OSTP had withheld the requested records and not whether the requested records are agency records, the resolution of Safire’s request in Kissinger is not important to CEI.

“Posessing” records

On appeal, the government argues that CEI v. OSTP is controlled by Kissinger. Just as the State Department had not withheld the transcripts requested by RCFP and MAP in Kissinger because it did not have possession or control of the transcripts, the government argues that OSTP has not withheld the email in Holdren’s nongovernment account because it does not have possession or control of the email.

In contrast, CEI argues that OSTP withheld the requested emails because it has constructive control over them through its employee-employer relationship with Holdren. CEI notes that OSTP never asked Holdren to turn over agency records in his nongovernmental email account in response to CEI’s FOIA request, which constitutes a withholding of those records. CEI also argues that Kissinger is distinguishable from this case because, unlike Kissinger, who deeded away the requested transcripts, Holdren retains the email in his nongovernmental account.

On behalf of a coalition of 26 media companies, the Reporters Committee filed an amicus brief agreeing with CEI that OSTP withheld the requested email. The Reporters Committee argues that the Court should use the same definition of “control” used in civil discovery to determine whether OSTP has control over the requested email, a standard that the Reporters Committee says was suggested by the Kissinger Court.

As explained by the Reporters Committee brief, the Federal Rules of Civil Procedure require a party to produce documents requested in civil discovery if they are within his or her “control.” Federal courts, in turn, have held that documents are under a party’s “control” when he or she has the right, authority, or practical ability to obtain the document from a nonparty to the lawsuit. Applying this standard, Reporters Committee argues that the Court should find that OSTP has control over the requested email because it has the right, authority, or practical ability to obtain them from Holdren, an employee of the agency.

The D.C. Circuit considered the parties’ arguments during oral argument in January. (A recording of the oral argument can be downloaded from the D.C. Circuit’s website.) The Court’s skepticism of the government’s claims that OSTP did not withhold the requested email, and that Kissinger controls the outcome of this case was evident in the questions the judges asked of the government’s attorney, Daniel Tenny, during argument.

Judges Harry T. Edwards and David B. Sentelle, in particular, repeatedly returned to the idea that Kissinger could be distinguished from this case because Kissinger had deeded away control of the transcripts at the time of the RCFP and MAP requests, while Holdren retains possession of the requested email.

Kissinger just doesn’t get you where you’re trying to go,” said Judge Edwards to the government’s counsel during the argument.

Judges Edwards and Sentelle were also critical of the government’s view that OSTP did not “control” the requested emails, with Judge Edwards characterizing the government’s argument that OSTP lacked control over the emails as “really strange” and “a really very narrow, bizarre” interpretation in light of the Court’s precedent on constructive control.

As Tenny argued to the Court that CEI’s theory that OSTP must ask Holdren for the email in his nongovernmental account is in itself evidence that OSTP lacks control over the email, Judge Sentelle interrupted him.

“Just a moment,” said Judge Sentelle, “Now suppose it was a real document instead of a virtual one, and [the employee] had it in his house . . . and the agency says, ‘Hey, bring back that file that you had, we need to turn it over in FOIA.’ Are you saying that takes it out of the agency category, because he took the document home?”

“And because they had to ask for it?” added Judge Edwards. “That makes no sense!”

“Your argument keeps coming back to, ‘You can’t make the government ask for it,’” said Judge Edwards to Tenny later in the argument. “That’s silly. At least it makes no sense to me. I don’t get that.”

Judge Edwards added later that to write an opinion the way the government described the case “would really be an embarrassment.” He said, “A lot of people would be laughing at us.”

The panel asked relatively few questions during the argument about the precise standard that the Court should use to determine whether OSTP has “control” over the requested email. However, late in the government’s argument, Judge Edwards noted that the Supreme Court had analogized to the civil discovery standard in Kissinger, which was the standard argued for by Reporters Committee on brief.

What it means for FOIA

If the D.C. Circuit rules in favor of CEI and holds that the District Court erred in dismissing CEI’s complaint on the basis that OSTP did not withhold the requested email, FOIA requesters will have an important precedent in their arsenal when attempting to obtain government records in the future.

Government employees conduct an increasing amount government business through their unofficial, personal email accounts. News reporting cited in the Reporters Committee’s brief has shown that employees at all levels of federal and state government routinely use private or personal email accounts to discuss government business of significant public importance. For example, in a 2015 survey of federal employees conducted by Government Executive, 16 percent of respondents reported that personnel in their department or agency always or often use personal email accounts for government business, and 47 percent sometimes or rarely do so. The same survey showed that 33 percent of respondents themselves use personal email for government business at least sometimes.

Journalists have also reported that agency personnel at the Internal Revenue Service and the Environmental Protection Agency have used personal email accounts to conduct official business. Similarly, news reports have revealed use of personal email by Department of Energy employees to conduct government work, and a 2015 Office of the Inspector General’s Special Report regarding the DOE’s email practices found that the DOE has not adequately addressed the use of personal email accounts to conduct agency business and lacks controls to ensure proper retention and archiving of such emails. Secretary of Defense Ash Carter has publicly acknowledged using his personal email for government business. In addition, news reports reveal that Department of Homeland Security personnel, including Secretary Jeh Johnson, used personal email on their work computers, though it is unclear if employees used these accounts to conduct government business.

The government has already begun relying on the District Court’s ruling in CEI v. OSTP to resist claims that agency records on nongovernmental email accounts should be disclosed under FOIA. For example, the Office of the Inspector General’s Report evaluating the State Department’s FOIA compliance, released before oral arguments in this case, cited the District Court’s opinion to support a claim that “FOIA neither authorizes nor requires agencies to search for Federal records in personal email accounts maintained on private servers or through commercial providers.” A ruling from the D.C. Circuit reversing the District Court will help roll back such claims.

Although the panel did not give a strong indication of whether it will apply the civil discovery standard to determining “control” for purposes of the withholding determination, such an approach would be an important development in FOIA law because it would clarify the standard that courts should apply in determining control of agency records and increase requesters’ ability to obtain documents outside of an agency’s physical possession. As demonstrated by CEI v. OSTP, applying FOIA to records outside an agency’s physical possession that the agency has the right, authority, or practical ability to obtain would help subject agency action to public scrutiny in an increasingly digital world.

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