January 01, 2017

Sunshine Laws: Freedom of Information Act Follows Government Workers Home

Charles D. Tobin

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My iPhone sits on my nightstand when I’m sleeping. Clients, colleagues, and family know that checking it is the first and last thing I do every day. I have at least one eye on emails—both my work and personal accounts—all day long.

The Internet, for those of us who have been around long enough to remember the pre-digital days, has freed us up—and chained us down. If our work environment permits, we can stay out of the office for extended periods. At the same time, because of easy remote access, some of us never stop working.

The decompartmentalization of personal and work time presents challenges for all lawyers, working in all sectors. It also creates special problems for government transparency that the courts are just now beginning to resolve.

A recent decision under the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552—which did not involve Hillary Clinton’s handling of her emails while secretary of state but mirrors a major issue that plagued her presidential campaign—provides a positive solution for proponents of maximum transparency. It tells government officials, loudly and clearly, that their obligations under public records laws move with them from place to place and from server to server.

Last summer, the U.S. Court of Appeals for the District of Columbia Circuit decided Competitive Enterprise Institute v. Office of Science & Technology Policy, 827 F.3d 145 (D.C. Cir. 2016). FOIA lawyers like me have been watching the case closely.

The lawsuit was filed by the Competitive Enterprise Institute (CEI), a libertarian think tank, which had sent the White House a request for “all policy/OSTP-related email sent to or from jholdren@whrc.org (including as cc: or bcc:).” John Holdren was President Barack Obama’s chief science advisor and headed the White House Office of Science and Technology Policy (OSTP).

The “whrc.org” domain is owned by the Woods Hole Research Center, where Holdren previously had worked as director. On its website, CEI describes Woods Hole as “an environmental pressure group.”

CEI had learned in earlier litigation that Holdren continued to use his old email address for government-related work. But OSTP, in moving to dismiss this lawsuit, argued that because the Woods Hole account is under the control of a private organization, and not the government, it was “beyond the reach of FOIA.” FOIA, they claimed, governs only federally controlled storage mechanisms. The federal district court agreed and dismissed the lawsuit.

In a firm rebuke of the government’s position, the D.C. Circuit panel—composed of conservative Senior District Judge David Sentelle, liberal Senior District Judge Harry Edwards, and Obama appointee Judge Sri Srinivasan— unanimously found that the White House had improperly responded to CEI’s FOIA request.

In the controlling decision for the court, Judge Sentelle characterized the White House’s argument as an assertion that agency heads can avoid FOIA through “the simple expedient of using a private email account rather than the official government communication system.” The court flatly rejected that premise.

The court observed that while the White House may not operate the Woods Hole email servers, the account remains under Holdren’s control. Noting that “an agency always acts through its employees and officials,” the court held that government records “do not lose their agency character just because the official who possesses them takes them out the door.” Otherwise, the court noted, an agency head could avoid FOIA requests for “hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.”

The D.C. Circuit remanded the decision to the district court with no specific instructions but with an implicit suggestion that the trial judge order OSTP to require Holdren to search his Woods Hole account for responsive documents. The court of appeals also made clear it was “not ordering the specific disclosure of any document,” and that any assertions of exemptions or that the records yielded in a search do not constitute “agency records” as defined under FOIA must await further litigation in the district court.

Ironically, the appeals court released its ruling the same week as the Department of Justice announced its decision that it would not prosecute Clinton for her use of “private” email servers in her home for government business. And with the release of the court’s decision, judges in the Clinton FOIA cases—one of whom specifically said he was waiting for this guidance from the D.C. Circuit—have begun moving along at a quicker pace.

The lesson should now be clear to all government employees: When you take your work home, you bring your FOIA obligations along with you. And the precedent may prove useful for those concerned with transparency and President Trump's administration.

Charles D. Tobin

The author is a partner with Holland & Knight, Washington, D.C., and a senior editor of Litigation.