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Media Alerts - Competitive Enterprise Institute v. Office of Science and Technology Policy
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July 5, 2016
  Competitive Enterprise Institute v. Office of Science and Technology Policy
Headline: D.C. Circuit holds agency documents maintained on a private email server remain under agency control for FOIA purposes

Area of Law: Freedom of Information Act

Issue(s) Presented: Whether agency documents which might otherwise be government records for FOIA purposes may not be searched for or turned over to the requestor because the head of the agency maintained the documents on a private email account in his name on a private organization's email site.

Brief Summary: In October, 2013, appellant Competitive Enterprise Institute (CEI) sent a FOIA request to the Office of Science and Technology Policy (OSTP) seeking any agency-related emails sent to or from a nonofficial email account maintained by OSTP's director, John Holdren, at Woods Hole Research Center. CEI had learned from a Vaugh Index produced in earlier FOIA litigation that Holdren may have used his Woods Hole email address for OSTP correspondence. In February, 2014 OSTP responded to the request, refusing to provide records from that email address on the basis that such records were "beyond the reach of FOIA" because they were in an account that was "under the control of the Woods Hole Research Center, a private organization." CEI exhausted its administrative appeals and brought suit in the U.S. District Court for the District of Columbia, seeking to compel production of Holdren's work-related emails from that account. OSTP successfully argued that because the email account at issue was not under its control, its contents were not agency documents required to be produced under FOIA and that the agency was not capable of searching them. The court granted summary judgment to OSTP and CEI appealed.

The U.S. Court of Appeals for the District of Columbia Circuit reversed. Acknowledging that FOIA does "not confer authority upon the courts to command agencies to acquire a possession or control of records they do not already have," the court concluded that the records at issue remained under OSTP's constructive control. Relying on Ryan v. Department of Justice, 617 F.2d 781 (D.C. Cir. 1980), the court found 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 further determined that "it is not apparent to us that the domain where an email account is maintained controls the emails therein to the exclusion of the user ... who maintains the account." Finally, the court that allowing department heads to exempt their correspondence from FOIA requirements "by the simple expedient of maintaining ... departmental emails on an account in another domain" is inconsistent with the purpose of FOIA.

Judge Srinivasan wrote separately to set out his understanding of why Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) did not control.

For the full text of the opinion, please see

Panel: Srinivasan, Edwards, Sentelle

Argument Date: January 4, 2016

Date of Issued Opinion: July 5, 2016

Docket Number: 15-5128

Decided: Reversed and remanded

Counsel: Hans F. Bader, Sam Kazman for appellant.

Daniel Tenny, Benjamin C. Mizer, Vincent H. Cohen, Jr., Matthew M. Collette for appellee.

Author of Opinion: Sentelle

Concurrence: Srinivasan

Case Alert Author:
Ripple Weistling

Case Alert Circuit Supervisor:
Elizabeth Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/05/2016 01:13 PM     DC Circuit  

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