When Private Emails Are Official Government Records

A Federal appeals court has ruled that an agency head’s email records that are stored on a private, non-government server are nevertheless official agency records reachable by a Freedom of Information Act (FOIA) request.

The influential U.S. Court of Appeals for the District of Columbia Circuit recently decided the question whether an agency can refuse to respond to a Freedom of Information Act request for records that the agency head took off site to a private entity. In Competitive Enterprise Institute v. Office of Science and Technology Policy (CADC No. 15-5128, 7/5/16), the court said it could not. (No, this did not involve the Department of State, but the facts are uncannily similar.)

In the OSTP situation, the agency head at OSTP (Office of Science and Technology Policy) had his records on “a private email account in his name at a site other than the government email site which the agency had searched.” (Opinion p. 2) The agency asserted it had no obligation to search through records that were off site and declined to do so. The District Court agreed that documents that might otherwise be agency records within the meaning of the FOIA (Freedom of Information Act) do not have to be searched nor turned over under the law.

Not so, ruled the circuit court. Here is the gist of the court’s reasoning as it rejects the government’s argument as making “little sense.”:

“In other words, an agency always acts through its employees and officials. If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.” (p. 8)

Competitive Enterprise Institute v. OSTP (15-5128)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.