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Should Hillary Worry About the D.C. Cir.'s New Email Ruling?

As the FBI announced that it would not recommend indicting Hillary Clinton for her use of a private email server while secretary of state on Tuesday, the D.C. Circuit simultaneously ruled that emails kept on private accounts could be subject to Freedom of Information Act requests.

The ruling didn't touch on Hillary's emails. Rather, it involved the little-known White House Office of Science and Technology Policy. But the implications for Hillary and other politicians are clear: keeping government records on private servers may not shield them from public scrutiny.

Private Email Is not Beyond FOIA's Reach

The D.C. Circuit's ruling came after the Competitive Enterprise Institute, a libertarian think tank, sought documents from the Office of Science and Technology Policy, an executive branch office tasked with advising the president on (you guessed it) science and technology policy, from climate change to open data.

The CEI submitted a Freedom of Information Act request for all policy and OSTP-related emails to or from Dr. John Holdren, the office's director, including those sent on his non-government email account. The OSTP refused to provide emails sent from Holdren's private account, saying that they were "beyond the reach of FOIA," since the email account was under the control of a private organization, not the government.

The D.C. Circuit disagreed, rejecting the OSTP's argument that documents on a private server are "outside the possession and control" of the federal government, and thus not covered by FOIA. Under D.C. Circuit precedent, the court explained, the government must search and disclose records that are under its "constructive control," even if the documents are held by another. Further, where an agency employee or official possesses government documents, they may be required to turn them over for FOIA review.

"This seems to us to be the only resolution that makes sense," Judge David B. Sentelle wrote for the three-judge panel. "If the agency head controls what would otherwise be an agency record, then it is still an agency record and must be searched and produced."

Implications for Hillary?

Some have argued that Hillary Clinton's use of a private email server as secretary of state was intended, in part, to protect her communications from public records laws, a goal the D.C. Circuit's ruling significantly undermines. And Hillary is currently facing a FOIA lawsuit, for access to those emails.

The federal judge overseeing that case halted proceedings just a few weeks ago, pending discovery in other cases. But he also noted that he would pay close attention to the D.C. Circuit's ruling regarding the OSTP.

The ruling definitely agitates in favor of those seeking access to Hillary and other politicians' government emails sent on private servers. But it doesn't mean we'll be seeing secret government emails anytime soon. FOIA exempts many national defense and foreign policy documents from production -- the very same sort of documents that got Hillary in trouble in the first place.

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