Court: Gov’t Emails on Private Servers Are Still Subject to FOIA Requests

While the FBI decided not to recommend Hillary Clinton be prosecuted for using a private server to send classified emails, the left-leaning D.C. Circuit Court of Appeals ruled Tuesday that e-mails on private servers are indeed subject to Freedom of Information Act (FOIA) requests.

Clinton is widely suspected of having used a private server precisely to evade such requests.

The ruling came in an appeal by the Competitive Enterprise Institute (CEI) against the White House Office of Science and Technology Policy (OSTP) over emails by OSTP director John Holdren on a private account. A lower court had sided with the administration.

“[W]e agree with plaintiff-appellant that an agency cannot shield its records from search or disclosure under FOIA by the expedient of storing them in a private email account controlled by the agency head,” the court held.

(Read the D.C. Circuit’s full decision here.)

The Obama administration is not the first in which officials have used private or alternative email addresses, but it has accelerated the practice dramatically, even while claiming to be the “most transparent administration in history.”

In addition to Clinton, former EPA administrator Lisa Jackson used an alias and false email under the name “Richard Windsor.”

The D.C. Circuit held:

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, that purpose is hardly served. 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.

The clear implication for Hillary Clinton’s case is that her server was still subject to public records requests, and therefore her decision to destroy e-mails was contrary to the law.

CEI issued a statement in response to the ruling:

“While today’s ruling is a major victory for government transparency, it’s stunning that it takes a court decision for federal employees to be held accountable to the law,” said Marlo Lewis, CEI senior fellow. “The ‘most transparent administration in history’ has proven over and over that it has no intention of actually letting the American public know what it is doing. Just think, if today’s ruling had gone the other way, the implication would be that all government business could be transacted on private email and be invisible to citizens, completely gutting FOIA – absurd! Director Holdren is not the first agency head to be found using private email for his government work, but as we continue our legal battle in this case, we seek for this unlawful behavior to come to an end.”

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. His new book, See No Evil: 19 Hard Truths the Left Can’t Handle, will be published by Regnery on July 25 and is available for pre-order through Amazon. Follow him on Twitter at @joelpollak.