Court: Officials can't use private e-mail accounts to evade records laws

Federal officials may not use private e-mail accounts to get around public records laws, a federal judge ruled June 5. The US Court of Appeals for the DC Circuit overturned a lower court decision in which judges dismissed claims from the Competitive Enterprise Institute (CEI), a conservative think tank that attempted to obtain correspondence from a top White House official through the Freedom of Information Act (FOIA).

The White House’s Office of Science and Technology Policy (OSTP) said it did not need to search for or turn over records held by the head of the OSTP on a private e-mail account as part of the open records request. Throughout the case, the government argued that “[d]ocuments on a nongovernmental e-mail server are outside the possession or control of federal agencies, and thus beyond the scope of FOIA.” Judge David Sentelle, the chief judge of the US Court of Appeals for the DC Circuit, disagreed with that reasoning and ordered the lower court to reconsider the case. “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 e-mails on an account in another domain, that purpose is hardly served,” Judge Sentelle wrote. “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,” he said.