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Government E-Mails Should Be Accessible, Wherever They Live

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In a defeat for the Obama administration, an appellate court has held that the government must release e-mails related to the White House science adviser’s performance of his duties -- even though the messages are housed on a private server.

The decision involves a different law than the one governing the e-mails of former Secretary of State Hillary Clinton, but the principle is the same: Government officials can’t avoid public disclosure by using nongovernment e-mail accounts for government business. The timing of the opinion is probably an accident. Yet the lesson is striking, especially because the decision doesn’t represent the most obvious interpretation of the Freedom of Information Act.

The case involves a FOIA request made by the Competitive Enterprise Institute to the White House Office of Science and Technology Policy. The director of the office, John Holdren, is the president’s most important adviser on science and was previously a professor in two departments at Harvard. Most relevant for our purposes, he was also director of the Woods Hole Research Center, an independent, nonprofit research organization that focuses on climate-related issues.

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The Competitive Enterprise Institute apparently had an inkling that Holdren continued to use his Woods Hole e-mail account while at the White House. In its FOIA request, the Institute included a request for “all policy/OSTP-related email sent to or from jholdren@whrc.org.”

The White House said no. Its argument was relatively straightforward: The Woods Hole server is a private entity outside government control. And the administration maintained that any documents residing on a nongovernmental email server aren’t covered by FOIA because they are “outside the possession or control of federal agencies.”

This was not a crazy legal argument. The text of FOIA doesn’t say much of anything about whether the government must deliver government-related e-mails from private servers. But the government cited two cases in which courts declined to fulfill FOIA requests when the documents being sought weren’t on government computers.

In one, involving a suit to obtain Interpol records relating to the Church of Scientology, the U.S. Court of Appeals for the D.C. Circuit held that FOIA doesn’t require the government to obtain records it doesn’t already have. The government said it didn’t have access to the Woods Hole server.

In the other, a FOIA suit by reporters against Henry Kissinger requested tapes of phone calls he made while secretary of state. The Supreme Court said FOIA didn’t provide for disclosure of records that were not within the relevant agency’s “possession or control.”

The argument that FOIA simply doesn’t cover material found on a private server thus made some degree of sense. The government can’t be expected -- or, you might think, allowed -- to go through private e-mail accounts to find material that would otherwise be subject to FOIA disclosure if it had been on a government computer.

But in Holdren’s situation, the D.C. Circuit balked at accepting the government’s argument. It held that the government must indeed go through Holdren’s Woods Hole server, review the materials there, and disclose under FOIA anything related to government policy.

To get around the precedents, the court said that the Interpol documents weren’t in the possession of a U.S. government agency, and the Kissinger tapes weren’t either at the time of the suit, having passed to Kissinger himself.

The court then made a new rule: “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.” It said that because Holdren controls his own Woods Hole account, then in effect, so does his agency.

The court’s underlying rationale was straightforward enough: if e-mails on private servers are exempt from FOIA, that could mean the effective end of the law as a mechanism for disclosure of government decision-making processes. All government officials might then move their e-mail communication to private servers and say they were not subject to FOIA.

To be sure, there was no issue of security clearance in this case, as there was with Clinton’s e-mails. For that reason, there was no question of a federal criminal law being broken by Holdren’s use of the private server. At most, Holdren might have been breaking federal regulations requiring that government business be done on government computers.

But the point of the D.C. Circuit opinion was directly relevant to the Clinton situation. The court was trying to head off the natural tendency of government officials to want to avoid the challenges of public disclosure of their daily e-mail in the course of business.

Ultimately, the court got it right in Holdren’s case. FOIA allows for plentiful exceptions when material isn’t suitable for public disclosure. But the whole point of the disclosure law could be undercut to the extent government officials migrate away from government e-mail servers. The court was interpreting FOIA according to its underlying purpose. And the Obama administration shouldn’t have tried to defend the practice in the first place.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net