This year, the Freedom of Information Act (“FOIA”) celebrates its fiftieth anniversary. For half a century, FOIA has generated a large body of both litigation and jurisprudence. This summer, the D.C. Circuit court added to the ever-growing body of FOIA caselaw with a holding that has major implications for journalists and requesters in the digital age.
In Competitive Enterprise Institute v. Office of Science and Technology Policy (“CEO v. OSTP”), the D.C. Circuit held that agency records, in the form of departmental emails, existing on a nongovernmental account must be searched or produced in response to FOIA requests. No. 15-5128 (D.C. Circuit, July 25, 2016). CEI v. OSTP reversed a district court decision dismissing the case, and clarifies that agency records are subject to FOIA regardless of their digital residence in a personal email account.
The litigation commenced after Competitive Enterprise Institute (“CEI”), a libertarian advocacy group, filed suit against the White House Office of Science and Technology Policy (“OSTP”) following the agency’s denial of a public records request for work-related emails kept in the private, nongovernmental account of OSTP Director John Holdren. Holdren maintained numerous work-related emails on an email account at the Woods Hole Research Center, where he worked previously. OSTP argued that FOIA did not apply to Holdren’s nongovernmental email account, because the agency has no control over the account. OSTP argued that because it does not own the account, the agency cannot be expected to comply with the FOIA request.
The district court agreed with OSTP, and cited Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 147 (1980) as the primary basis for its decision. Kissinger held that records that Henry Kissinger transferred to the Library of Congress were not available via a FOIA request. The district court found that storing agency emails on a nongovernmental email account was akin to Kissinger’s transfer of records.
The D.C. Circuit disagreed. Overruling the district court, the D.C. Circuit held that Kissinger did not apply because the emails in Holdren’s nongovernmental account were still in the agency’s control. Relying on Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), the court determined that the fact that the emails were in the possession of the head of the agency who had, in effect, moved them off site did not negate their “agency character.” The court explained that “an 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.” CEI v. OSTP, No. 15-5128 at 8.
The D.C. Circuit explained that FOIA’s purpose would be frustrated if it held that agency emails are immune from FOIA requests simply because they are maintained from a nongovernmental account. “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, [FOIA’s] purpose is hardly served.” Id. at 9. The court clarified its reasoning with an example: “It would make as much sense to say that the department head could deprive requesters of hard copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control.” Id.
The CEI ruling is certainly a major victory for FOIA requesters, and could set an important precedent for journalism in the digital age. Nongovernmental email accounts are often free and can be created in minutes. Whether an agency policy permits it or not, the reality is that many governmental employees use personal email accounts for work. The employee might conduct agency correspondences entirely from the nongovernmental account. Alternatively, the employee might email various agency documents from the agency email to a personal email in an effort to have access to documents outside of work. Such actions might be unauthorized, but they are workplace realities. The CEI ruling helps further a more transparent government by prohibiting an agency’s employees from immunizing documents from FOIA requests simply by conducting business with a personal email account.
With email serving as the dominant method of twenty-first century communication, the D.C. Circuit’s CEI holding is significant. Even after fifty years of FOIA litigation and jurisprudence, digital technology continues to give requesters more avenues in the pursuit of transparency.