Private Email Use For Government Work Not Just A Classification Problem

Remember folks, I am not a lawyer.

On Tuesday the U.S. Court of Appeals for the District of Columbia Circuit ruled on a Freedom of Information Act (FOIA) lawsuit (H/T G. William Thomas) involving the Office of Science and Technology Policy (OSTP) and the Competitive Enterprise Institute (CEI).  The CEI had requested documents under FOIA, and as part of that request sought emails from an email account that OSTP Director John Holdren has from the Woods Hole Research Center (where he served as director prior to becoming OSTP Director).

At first blush you may consider this an overreach, but according to the ruling (page 3), the OSTP had previously shown in a separate FOIA lawsuit involving CEI that Director Holdren had used the Woods Hole account for work related purposes.  The proof was a Vaughn Index produced by OSTP, so the agency had to know that there would be work-related email on the Woods Hole account.  (I have not been able to find the Vaughn index in question, which was complicated immensely by the Court failing to cite the specific case.  The FOIA improvements signed into law earlier this week can’t come fast enough.)

Those who follow the news may find this annoyingly familiar.  While the case currently dominating the news is more involved, and has the extra wrinkle of involving classified material, public officials have been using private email for public business for a while.  Personally, I don’t think it should be permitted in any instance.  (And this kind of nonsense is not limited to federal officials.)

And this is where I might differ with those concerned about fishing expeditions conducted into personal email accounts.  If there had been no evidence to suggest Holdren was using a private account for government business, I would certainly consider it an overreach for CEI to want OSTP to search Holdren’s private email.  In that situation, CEI would need to demonstrate why it felt that documents relevant to its request could be expected on that account and the corresponding search would need to be very targeted.

The case will return to the district court that dismissed the case back in March 2015 for further proceedings.  The OSTP may have other grounds to contest the production of these emails, and there will certainly be a new OSTP Director (perhaps one with an Acting in front) by the time the case is resolved.


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